Discovery Interrogatories Pretrial Matters

A DISCOVERY

- What happens fr time when action commence to time when start drafting affidavits in chief Pleadings have closed Before drafting of affidavits in chief ndash what happens in litigation process

- Parties first have to discharge oblig of discovery

1 Jurisdiction of courts- First schedule para 12 - Discovery and interrogatories

12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

2 What must be disclosed - O 24 r 1

documents which are or have been in his ldquopossession custody or powerrdquo- Section 3 of the Evidence Act definition of ldquodocumentrdquo

ldquoany matter expressed or described upon any substance by means of letter figures or marks or by more than one of those means intended to be used or which may be used for the purpose of recording that matterrdquo

(includes an inscription on a metal plate or stone or caricature) See also S 378(3) of the CPC ndash stored images and or stored audio material also documents Tape recordings (grant v southwestern and country properties 1975) Video recordings (senior v

holdsworth exp Independent television news ltd 1976) microfilms computer database (barker v Wilson 1980) copies of orig documents (dubai bank v galardari 1992) Business books (O24 rule 14)

- ldquoPossessionrdquo refers to the right to possess a document- ldquoCustodyrdquo refers to actual physical holding of a document irrespective of litigants right to possession Qn of

fact- ldquoPowerrdquo - ldquoa presently enforceable legal right to obtain from whoever actually holds the document

inspection of it without the need to obtain the consent of anyone elserdquo per L Diplock Lonrho Ltd amp Anor amp Shell Petroleum Co Ltd Anor [1980] 1 WLR 627

in this case when one party argd that other party shld prod docs in the possession of foreign subsidiary ndash UK comp had subsid in rodesia and south Africa ndash 100 owned So doc in possession of those countries shld be in their power Court held that not in their power because foreign comp had their own indep autonomous board so still needed their consent of foreign comp strange Court not prepared to go too far

cf B v B [1978] Fam 181 doc of comp in power of def director because he is entitled to inspect documents

- ambit of lw as to what is within ambit of partyrsquos power stil in debate lonrho Applied in wee soon kim Anthony v VBS AG 2002 SGHC 206

14 I refer to Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 a decision of the House of Lords In this case the plaintiff Lonrho wanted discovery of documents in the possession of the defendant Shell Petroleumrsquos subsidiary companies in Rhodesia and South Africa The subsidiary companies refused to disclose the documents on the grounds that they cannot do that without ministerial licence

15 The question was raised whether the documents were in Shell Petroleumrsquos power for the purposes of O24 of the Rules of the Supreme Court which is similar to O24 of our Rules of Court

Lord Diplock who delivered the judgment of the court stated at p 635 (I)n the context of the phrase possession custody or power the expression power must in my view mean a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else Provided that the right is presently enforceable the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power but in the absence of a presently enforceable right there is in my view nothing in Order 24 to compel a party

and held that the documents were not in Shell Petroleumrsquos power because Shell Petroleum could not have access without the ministerial licence

17 In the present case the plaintiff as a customer or former customer of the banks would have a right to the documents subject to the payment of copying and other related charges

18 In the event the plaintiff who did not take steps to get the documents from the banks opposed the defendantrsquos efforts to get them from the same source

hellip40 Having examined the plaintiffrsquos objections and finding no merits in them I granted the defendantrsquos application

o diff test wrt what doc need to discover and what you are entitled to extract fr other side by means of application to court

o 1 court orders you to file a list of docs (client) ndash at time of fiing test is -gto 2 if you want more doc file more doc appicaitn ndash court will apply a broader test in o24 r12 ndash this is the test

is Peruvian ndash far broader than first test

Order for discovery (O 24 r 1)1 mdash(1) Subject to this Rule and Rules 2 and 7 the Court may at any time order any party to a cause or matter (whether begun by writ originating summons or otherwise) to give discovery by making and serving on any other party a list of the documents which are or have been in his possession custody or power and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party (2) The documents which a party to a cause or matter may be ordered to discover under paragraph (1) are as follows (a) the documents on which the party relies or will rely and (b) the documents which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case (3) An order under this Rule may be limited to such documents or classes of documents only or to only such of the matters in question in the cause or matter as may be specified in the order

- discovery is limited to classes of documents in O 24 r 1(2) (a) document on which party relies will rely (b) document which could (i) adversely affect own case or (ii) adversely affect support another

partyrsquos case [compare Compagnie Financiere Et Commericale Du Pacifique v Peruvian Guano Co (1882) 11 QBD 55]

3 Continuing Obligation- 1048708 O 24 r 8

Duty to discover continues throughout proceedings (O 24 r 8)8 After the making of any order under Rule 1 or 5 the party required to give discovery under any such order shall remain under a duty to continue to give discovery of all documents falling within the ambit of such order until the proceedings in which the order was made are concluded

- equivalent of the common law principle that giving discovery of documents is a continuing obligation- discovery of new documents can be done by means of a supplemental list of documents- counsel oblig to advise client ot file on last day if a lot of documents- court in interest of justice has taken solicitor at task ndash if his client fails in discovery oblig May win case

based on withholding docs Parties are open about disclosingerlvant docs So solicitor must be careful abt discharging duties to court

4 basis for ordering discovery

Discovery to be ordered only if necessary (O 24 r 7)7 On the hearing of an application for an order under Rule 1 5 or 6 the Court may if satisfied that discovery is not necessary or not necessary at that stage of the cause or matter dismiss or as the case may be adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs

- Dolling barker v merret 1990- Wallace smith trust v deloitte Haskins and sells 1997

5 purpose and nature of discovery

kuah kok kim v Ernst and young 1997 1 SLR 169FactsThe appellants were minority shareholders of a company who agreed to sell their shares to the majority shareholders at a price to be valued The respondents were instructed to carry out a non-speaking valuation and they valued the shares at $215 per share The shares were then sold at that price Subsequently the appellants obtained a valuation from another accounting firm which valued the shares between $317 and $326 each and also gave a brief statement of the various methods of valuation which they had used and the methods which they considered inappropriate The appellants requested the respondents to disclose their basis of valuation but the respondents refused stating that they were not required to do so as they had agreed to a non-speaking valuationThe appellants commenced proceedings pursuant to O 24 r 7A of the Rules of the Supreme Court 1990 for pre-action discovery of documents and working papers which the respondents had referred to or used in determining their valuation to enable the appellants to decide whether there had been a breach of contract or negligence on the part of the respondents and thus to decide whether to bring an action against them The assistant registrar granted the application but when the matter came before the trial judge he allowed the appeal in part and varied the order to exclude working papers and documents created or prepared by the respondent The appellants appealedHeld 55 We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings56 In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceedinghelliphellip59 Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition60 It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents61 In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

reebok international v royal corp 1992 2 SLR 136The Riddick principle15 The first principle (for convenience I shall refer to it as lsquothe Riddick principlersquo) is that where a party to litigation has been ordered to give discovery the other party may not use the information so obtained for a collateral or improper purpose ie for any purpose other than the further pursuing of the action in which the discovery is given In the absence of an express undertaking given to the court there is implied an undertaking that the discovering party may not use the information against the other party for any other improper or collateral purpose The rationale for the undertaking is the encouragement of full and frank disclosure in court proceedings in the interest of administration of justice The Riddick principle has been applied in cases like Home Office v Harman Riddick v Thames Board Mills Halcon International Inc v Shell Transport amp Trading Co Sybron and Sim Leng Chua v JE Manghardt In Manghardt this court held following Riddick that a defamatory letter disclosed by the defendant in another action before the High Court between the same parties could not be used by the plaintiff to launch a libel action against the defendant

16 The Riddick principle is not an absolute principle The court has a discretion to release or modify the undertaking whether express or implied In Crest Homes Lord Oliver of Aylmerton (whose judgment was concurred to by all the other members of the House) saidYour Lordships have been referred to a number of reported cases in which application has been made for the use of documents obtained under Anton Piller orders or on general discovery for the purpose of proceedings other than those in which the order was made Examples were Halcon International Inc v Shell Transport amp Trading Co and Sybron Corp v Barclays Bank plc I do notthink that it would be helpful to review these authorities for they are no more than examples and they illustrate no general principle beyond this that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery

6 determination of issues prioer to discovery

Order for determination of issue etc before discovery (O 24 r 2)2 mdash(1) Where on an application for an order under Rule 1 it appears to the Court that any issue or question in the cause or matter should be determined before any discovery of documents is made by the parties the Court may order that that issue or question be determined first (2) Where in an action begun by writ an order is made under this Rule for the determination of an issue or question Order 25 Rules 2 to 7 shall with the omission of so much of Rule 7 (1) as requires parties to serve a notice specifying the orders and directions which they desire and with any other necessary modifications apply as if the application on which the order was made were a summons for directions

7 pre action discovery- 61 and 63-64 = procedure- purpose ndash 65- privilege ndash 67a- terms of order ndash 66 and 69

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) An originating summons under paragraph (1) or a summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court (b) in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both and that the person against whom the order is sought is likely to have or have had them in his possession custody or power (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order for the discovery of documents before the commencement of proceedings or for the discovery of documents by a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just (6) An order for the discovery of documents may mdash (a) be made conditional on the applicantrsquos giving security for the costs of the person against whom it is made or on such other terms if any as the Court thinks just and (b) require the person against whom the order is made to make an affidavit stating whether the documents specified or described in the order are or at any time have been in his possession custody or power and if not then in his possession custody or power when he parted with them and what has become of them (7) No person shall be compelled by virtue of such an order to produce any document which he could not be compelled to produce mdash

(a) in the case of an originating summons under paragraph (1) if the subsequent proceedings had already been commenced or (b) in the case of a summons under paragraph (2) if he had been served with a subpoena to produce documents1 at the trial (8) For the purpose of Rules 10 and 11 an application for an order under this Rule shall be treated as a cause or matter between the applicant and the person against whom the order is sought (9) Unless the Court orders otherwise where an application is made in accordance with this Rule for an order the person against whom the order is sought shall be entitled to his costs of the application and of complying with any order made thereon on an indemnity basis

- Getting relevant doc before proceedings from Someone protential party Or not unvolved directly in litigation

o Rationale ndash u are entitled to get doc to check whether have case or not - 1048708 O 24 r 6 (1)- 1048708 Procedure is the same whether person from whom discovery sought is a potential party or not

- application by Originating Summons and supporting affidavit - affidavit to state grounds of application material facts pertaining to intended proceedings and

whether person against whom order sought likely to be a party ndash O24 r 6(3)(a) - it is necessary to describe or specify the documents sought ndash O24 r 6(3)(b) describe tpe of class

of documents

- Affidavit must also state the relevance of documents sought and state that person is likely to have documents in possession custody or power

- It is accepted that at this stage the Plaintiff may not know whether he has a viable claim against the Defendant The rule is there to assist the Plaintiff But Plaintiff must set out substance of claim and also state the cause of action to enable a potential Defendant to know the essence of the complaint This is to prevent fishing expeditions

Kuah Kok Kim v Ernst amp Young [1997] 1 SLR 169 CA ndash donrsquot need to specify individual doc Just describe type of class

- Even if the documents are relevant they must meet criteria under O24 r 7 namely whether the discovery is necessary for fair disposal of the proceedings or for the saving of costs

Bayerische Hypo ndash und Vereinsback AG V APB [2004] SGHC 155 ndash fair disposal test Test of relevcancy is bery broad Court esercises some limits

Bank defrauded asking for pre action discovery against APB ndash court said even if doc is relevant must demonstrate a necessity for disclosure Counsel argued that want to narrow issues since going ot sue them anyway Court said that he knew exactly what he was going ot sue for so he shd just go for normnal discovery in any case since going to trial anyway Pre trial discovery only created to prevent unnec trials and writs Not to allow unnec appkications where trial going to proceed anyway Since party certain

8 discovery between parties and how to disclose

- order 24 rule 1- 1048708 List of documents in Form 37 and Affidavit verifying list in Form 38

Form of list and affidavit (O 24 r 3)3 mdash(1) A list of documents made in compliance with an order under Rule 1 must be in Form 37 and must enumerate the documents in a convenient order and as shortly as possible but describing each of them or in the case of bundles of documents of the same nature each bundle sufficiently to enable it to be identified (2) If it is desired to claim that any documents are privileged from production the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege (3) An affidavit made under Rule 1 (1) verifying a list of documents must be in Form 38

- 1048708 List divided into 2 Schedules Schedule 1

documents in possession custody power Part 1 No privilege applies ndash oblig is to serially list each item Cannot be generic in

labeling must list each document cook v smith ndash see case

Part 2 Privileged documents ndash not nec to enumerate doc one by one Schedule 2

documents previously in possession custody power need to give details of when documents last in possession and what has become of them

ndash must state Otherwise opp party can strike out action because no proper discovery

9 Order 24 r3(2) ndash Privilege

- dont inadvertently disclose

The Patraikos 2 [2001] 4 SLR 308- Facts- The plaintiffsrsquo cargo was damaged when the defendantsrsquo vessel (the lsquovesselrsquo) on which it was loaded ran

aground The plaintiffs claimed for damage to the cargo contending amongst others that the defendants breached the Hague Rules (the lsquoRulesrsquo) by engaging a second officer (lsquoOrlandarsquo) who was involved in the grounding of another ship (the lsquoSaronikos IIrsquo) previously

- The plaintiffs were dissatisfied with the defendantsrsquo list of documents for discovery and successfully applied for a further and better list of documents The defendantsrsquo appealed against the following set of documents ordered to be disclosed

(1) Various survey reports regarding the vesselrsquos construction (2) Two faxes from their solicitors (lsquoSRTrsquo) to their managing agents (lsquoDioryxrsquo) (3) ndash (5) Various documents relating to the vesselrsquos seaworthiness and (6) Documents pertaining to the grounding of the Saronikos II

o Held dismissing the appealo (1) Discovery of particular documents would only be ordered if they lsquorelate to matters in question in the

cause or matterrsquo O 24 r 7(3) Rules of Court A document related to the matters in question if it - (a) would be evidence on any issue (b) contained information which might enable the party requiring it to either advance his own case or to damage his adversaryrsquos or (c) might fairly lead him to a train of inquiry which may have either of the consequences in (b) To print it more simply if it threw light on the case the document related to matters in question

o (2) A ship must meet various criteria before it was deemed lsquoseaworthyrsquo Hence item (1) documents constituted evidence as to the vesselrsquos seaworthiness which was a matter in question Furthermore the defendants had implied that they were relevant as they had included them in their list of documents

o (3) The faxes in item (2) would throw light on the true qualifications of the vesselrsquos Chief Officer (lsquoSporidisrsquo) at the time of the grounding SRT and Dioryx had broached this issue and Dioryxrsquos practice of employing officers for their experience and not solely on their paper qualifications Sporidisrsquo qualifications was relevant as it might support the claim that the defendants failed to properly man the vessel as required by art III r 1(b) of the Rules Furthermore the faxes were not privileged as the defendants failed to show that they either reflected their instructions to SRT or gave an indication of the legal advice that SRT would be giving them

o (4) The documents in items (3) (4) and (5) were matters in question as they related to the vesselrsquos seaworthiness Furthermore there was no evidence that the volume of documents under item (4) would be so massive such as to make discovery oppressive

o (5) As Orlanda was on the bridge of the Saronikos II when it ran aground the documents in item (6) were relevant If they indicated that the grounding resulted from Orlandarsquos incompetence or negligence then the plaintiffs were entitled to use the evidence to argue that the defendants in engaging Orlanda despite knowing his past employment history failed to properly man the vessel

o Per Curiamo Apart from the statutory protection afforded by s 128(1) of the Evidence Act (Cap 97 1997 Ed) to

communications between lawyers and their clients communications between (a) the clientrsquos legal advisers and third parties if made for the purpose of pending or contemplated litigation and (b) the client or his agent and third parties if made for the purpose of obtaining information to be submitted to the clientrsquos legal advisers for the purpose of obtaining advice on pending or contemplated litigation were protected as well

- Types of privilege 1048708 Legal professional privilege ndash most usual Stock list ndash lsquoall correspondence governed by legal

proff privilege ie corresp bet lawyer and clientrsquo 1048708 Litigation privilege

1048708 Privilege against self-incrimination 1048708 Public interest privilege ndash O24 r15

Document disclosure of which would be injurious to public interest Saving (O 24 r 15)15 Rules 1 to 14 shall be without prejudice to any rule of law which authorises or requires the withholding of any document on the ground that the disclosure of it would be injurious to the public interest

1048708 Without Prejudice communications- Facts upon which privilege is claimed must be set out in the affidavit Gardner v Irvin [1878] 4 Ex D49- See also O24 r 19 ndash other party who inspected by mistake not allowed to rely on those doc unless cout

grants leave This is where he only inspected the doc itself- Whre included in long klist of doc and handed to other side ndash no specific rules need to take out application

and how this mistake arose

10 types of docs to be disclosed ndash order 24 r12

Wright v Times Business Publications Ltd amp Anor [1991] 3 MLJ 12- These rules are identical with the English rules O 24 rr 7(1) and 8 except that the English O 24 r 8 applies

also to discovery before commencement of proceedings - The principles underlying discovery were enunciated as long ago as 1882 by Brett LJ in The Compagnie

Financiere Et Commerciale Du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 They are as applicable today as they were then under the relevant English Rules of Supreme Court 1875 O XXX1 r 12 At pp 62-63 of the report Brett LJ stated the principle as follows

- The doctrine seems to me to go further than that and to go as far as the principle I am about to lay down It seems to me that every document relates to the matters in question in the action which not only would be evidence upon any issue but also which it is reasonable to suppose contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary I have put the words `either directly or indirectly` because it seems to me a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of inquiry which may have either of these two consequences

- Both sides have relied heavily on this oft quoted passage OCBC to show that the specified class of documents must be relevant to the issue raised by the plea of justification and the particulars relied upon by placing emphasis on the phrase `it is reasonable to suppose` and Norman Wright by suggesting that any document or class of documents which will show or lead to a train of inquiry which will show the truth or falsity of whether OCBC had caused or permitted a breach of confidence or had either deliberately or through ignorance or carelessness broken any promise of confidentiality to the four bankers or were not able to keep confidential matters or information which should be kept confidential would be relevant since these were the real issues raised by the plea of justification and the particulars relied upon and not that he Norman Wright did not check the truth of the assertions he had made as contended by OCBC

- As is to be expected both sides are in serious contention as to what is the real issue raised by OCBC`s plea of justification and the particulars relied upon

- I will now deal with this question Mr Gray submits that the `sting` of the libel of which Norman Wright complains is that he was reckless irresponsible and mischievous because he wrote a letter containing unfounded allegations about OCBC

- hellipIn my view it is crucial to the question of discovery in this appeal to determine the real issue raised by the plea of justification and the particulars relied upon as if Mr Gray is right Norman Wright would not be entitled to discovery of the classes of documents requested for they being all internal documents belonging to OCBC of which he had no knowledge when he wrote his letter to the BT and accordingly not relevant

- The words of the unreserved apology (set out in full under the sub-heading The background) which gave rise to Norman Wright`s complaint are to be found in the second paragraph and read BT is satisfied and accepts that the statements concerning the Overseas-Chinese Banking Corp Ltd in the said letter were and are wholly unfounded (Emphasis added)

- The remainder of that paragraph is an expression of belief and the third paragraph is the apology for the alleged consequence of these words

- hellip Accordingly the classes of documents of which Norman Wright has got discovery by the order of the assistant registrar dated 4 October 1988 have no bearing whatsoever on what I have found to be the true issue in the 1988 proceedings and are therefore totally irrelevant

- An examination of the classes of documents all of which relate to the recruiting procedures adopted by OCBC and their internal procedures both generally and specifically to the four named bankers in question for maintaining confidentiality are not only irrelevant but also unnecessary either for disposing fairly of the cause or matter of for saving costs (O 24 r 8) in view of my finding on the issue raised by OCBC`s plea of justification and the particulars relied upon I find it difficult to imagine how an examination of these classes of documents can lead one to reasonably suppose that they might contain information which may fairly lead to a train of inquiry to damage OCBC`s plea of justification that Norman Wright failed or neglected to check out his assertions before making them The rule is stated in 13 Halsbury`s Laws of England (4th Ed) para 38 as f ollows Relevance must be tested by the pleadings and particulars and when particulars have been served which limit a particular issue the discovery on that issue is limited to the matter raised in the particulars

- The extreme width and lack of specificity of the classes of documents in question led Mr Gray to submit that Norman Wright had little idea of what went on in OCBC and was therefore embarking on a `fishing expedition` in the hope of `trawling` through a volume of unnecessary and irrelevant documents hoping that he would make good his assertions of breach of confidentiality on the part of OCBC either deliberately or through ignorance or carelessness or being unable to keep confidential matters which ought to be kept confidential I cannot but agree

- A further argument advanced by Mr Gray was that to allow Norman Wright to have the discovery he had succeeded in getting was to permit him to circumvent the order of Chao Hick Tin JC in the 1987 proceedings He conceded however that I would have to grapple with this question only in the event that I hold that the classes of documents in question were relevant to the issue of justification in the 1988 proceedings

- Having reached the conclusions I have I do not feel it necessary to grapple with this question or to deal with the numerous authorities that were cited to me on this point However since both counsel spent much time on this point I proceed to make some observations on the arguments

- The substance of Mr Gray`s submission was that even if Norman Wright was entitled to discovery of the particular classes of documents in question discovery should be denied as the irresistible inference was that Norman Wright`s underlying motive was to provide him with a defence in the 1987 proceedings He pointed out that the close similarity between the classes of documents sought in the 1988 proceedings and those sought in the 1987 proceedings bore this out In fact for all practical purposes they are identical He further submitted that it was difficult to believe that Norman Wright would have started the 1988 proceedings at all were it not his desire to achieve a collateral advantage in the 1987 proceedings

- Mr Milmo strongly resented these allegations of an ulterior motive which he submitted was mere conjecture on the part of Mr Gray His submission was that if the particular classes of documents of which discovery was sought in the 1988 proceedings were relevant then it was irrelevant that similar discovery was refused in the 1987 proceedings Furthermore there was an implied undertaking that documents obtained in one case would not be used in another case The court could always protect the party giving discovery by withholding production or inspection to a later date as suggested by Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 471 which I wa s urged to follow Jenkins J said It seems to me however that in the further and better affidavit of documents which I now propose to order it will be open to the defendant if so advised to say with respect to particular documents or a particular class of documents that those documents are for this or that reason especially confidential and that he objects to producing them except on an undertaking by the plaintiff in whatever form the defendant conceives would be adequate for his protection If on that the parties cannot agree as to the form of the undertaking then the matter can come before the court as a question concerning the terms if any which ought to be imposed on the plaintiffs as a condition of having production of those particular documents

- I have already drawn attention to the extreme close connection between the 1987 proceedings and the 1988 proceedings and whilst I would not go so far as to say that Norman Wright`s application in the 1988 proceedings were motivated wholly by an unworthy purpose it would not in my view be desirable in the circumstances of this case to allow discovery of the very classes of documents which were refused in the 1987 proceedings whilst the appeal in those proceedings was still pending even if I had found that they were relevant to the 1988 proceedings In coming to this conclusion I was guided by the words of Lord Oliver of Aylmerton who delivered the main speech in the House of Lords in Crest Homes plc v Marks amp Ors [1987] 2 All ER 1074 at p 1078 It is clearly established and has recently been affirmed in this House that a solicitor who in the course of discovery in an action obtains possession of copies of documents belonging to his client`s adversary gives an implied undertaking to the court not to use that material nor to allow it to be used for any purpose other than the proper conduct of that action on behalf of his client (see Home Office v Harman [1982] 1 All ER 532 [1983] 1 AC 280) It must not be used for any `collateral or ulterior` purpose to use the words of Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 470 approved

and adopted by Lord Diplock in Harman`s case [1982] 1 All ER 532 at p 536 [1983] 1 AC 280 at p 302 Thus for instance to use a document obtained on discovery in one action as the foundation for a claim in a different and wholly unrelated proceeding would be a clear breach of the implied undertaking (see Riddick v Thames Board Mills Ltd [1977]3 All ER 677 [1977] QB 881) It has recently been held by Scott J in Sybron Corp v Barclays Bank plc [1985] Ch 229 and this must in my judgment clearly be right that the implied undertaking applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind But the implied undertais one which is given to the court ordering discovery and it is clear and is not disputed by the appellants that it can in appropriate circumstances be released or modified by the court (Emphasis added)

- I must not of course pre-empt the Court of Appeal in the 1987 proceedings but as that judgment now stands and having regard to the allegations and counter-allegation of malice and what I discern to be the intensity with which these two proceedings are being conducted I would not be comfortable in relying on the implied undertaking which it is conceded exists that some information gleaned from these documents and stored in the mind would not be used u nwittingly in the conduct of the 1987 proceedings

11 limitation to discovery ndash order 24 rule 13

12 Application for specific discovery can be made against party

- If not satisfied with discovery made ndash can take out this order- 1048708 O 24 r 5-Order for discovery of particular documents (O 24 r 5)5 mdash(1) Subject to Rule 7 the Court may at any time on the application of any party to a cause or matter make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is or has at any time been in his possession custody or power and if not then in his possession custody or power when he parted with it and what has become of it (2) An order may be made against a party under this Rule notwithstanding that the party may already have made or been required to make a list of documents or an affidavit under Rule 1 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions (a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and (c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case (4) An order under this Rule shall not be made in any cause or matter in respect of any party before an order under Rule 1 has first been obtained in respect of that party unless in the opinion of the Court the order is necessary or desirable

- 1048708 Procedure SIC supported by affidavit affidavit will state belief of deponent that party from whom discovery is sought has or had

possession custody power of documents sought- 1048708 Expanded test of relevance for further discovery - O24 r 5(3)

document on which party relies will rely document which could adversely affect own case or adversely affect support another partyrsquos case document which could lead to party seeking discovery to a train of enquiry resulting in his

obtaining information which may

ndash adversely affect his own case orndash adversely affect support another partyrsquos casendash =gt very wide test

- test adopted from Compagnie Financiere v Peruvian Guano (1882) 11 QBD 55 where court held that document would be relevant if it is reasonable to suppose that it contains

information which would either directly or indirectly enable the party (requiring the discovery) either to advance his own case or damage the case of his adversary

broadly worded test to ensure that all relevant evidence will be made available to ensure that a dispute can be adjudicated fairly

- greater latitude as compared with O24 r 1 but discovery must be ldquonecessary for disposing fairly of the matter or for saving costsrdquo ndash O 24 r 7 Court should inspect the documents and review facts in issue and also whether documents are confidential ndash Wallace Smith v Deloitte Haskins [1997] 1 WLR 257

ndash discretion fo court Litmus test ndash broad- Court must balance need for discovery with risk of abuse of the discovery process - O 24 r 7- Even if documents are relevant discovery will not be ordered if they are not necessary for the fair disposal

of the dispute ndash Dolling-Baker v Merret [1990] 1 WLR 1205 ndash party had dispute with inusrnac epolicy with

insurance company Party found that insurance comp had similar dispute in arbitration with another part on same type of policy Prob not relevant but even if relevant not nec for disposal fairly or for saving csots in fact aggravating costs So if can show good reason why not relevant can gt them out

- also note the need to prevent ldquofishingrdquo ie seeking discovery of documents without demonstrating their need relevance

Be narrow Msut demonstrate relevancept to paras in pleadings and say that this is directly in issue Must be clear and precise about what you want

Norman Wright amp Ors v OCBC [1992] 2 SLR 710 Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil engineering Pte Ltd [2003] 1 SLR 75

SMS Pte Ltd v Power amp Energy Pte Ltd [1996] 1 SLR 767Facts

The respondent cargo owners SMS sued the appellant carriers Energy for damage caused to their cargo which SMS alleged was due to Energyrsquos breach of contract or breach of duty as bailee or negligence Energyrsquos defence was that (a) there was no evidence of loss or damage when the good were delivered and (b) SMS failed to commence their suit within one year of the date of delivery of the goods At the hearing Energy applied for the defence to be struck out under O 24 r 16 of the Rules of the Supreme Court (RSC) as SMS failed to comply with the order for discovery The application to strike out the defence was made orally and not by summons-in-chambers The trial judge exercising his discretion allowed Energyrsquos oral application and truck out the defence and entered judgment in favour of Energy SMS appealed arguing (a) that the trial judge erred in allowing Energy to make their striking out application orally and (b) the trial judge should have struck out Energyrsquos defence because the order for discovery was not an lsquounlessrsquo order

Heldhellip10 At the hearing of the action on 22 February 1995 the respondents applied under O 24 r 16 for the defence to be struck out and judgment to be entered for the respondents This rule provides that if an order for discovery is not complied with the court may where the party in breach is a defendant strike out the defence and enter judgment for the plaintiff The application was made orally and not by way of a summons-in-chambersThis explanation does inform why no discovery had been provided by the appellants and shows there was no suppression of documents by the appellants However even if they did not have any discoverable documents the appellants could and should have filed a nil list giving such particulars as they could of what documents were once in their possession and then verified the list by affidavit This they did not do and were wrong not to Did the appellantsrsquo failure to file a nil list warrant the defence being struck out and judgment being entered It would be appropriate to do so only if such failure created a real risk that a fair trial of the action would be impossible Whether this was so is dealt with shortly23 Furthermore in deciding whether or not to strike out the defence the learned trial judge does not appear to have applied the test whether failure to file the list of documents would have rendered a fair trial of this action impossible Applying this test and bearing in mind the relevant circumstances enumerated earlier in this courtrsquos judgment the failure of the appellants to file their list of documents did not render a fair trial of this action impossible In any event such a list would have been a nil list and the respondents would have been in no better or worse position than they were before the list was filed If the appellants had filed a nil list verified on affidavit the respondents would have had to accept it unless of course they had evidence to the contrary and subject to

their right to ask for discovery of particular documents as provided by O 24 r 7 As Harman LJ said in John Walker amp Sons Ltd v Henry Ost amp Co [1970] RPC 151 at p 154 ll 45ndash48True it is that one cannot when an affidavit of documents or a list of documents is produced file an affidavit to say lsquoWell I do not believe this man has told the truth or disclosed everything he ought torsquo This affidavit is as they say conclusive24 The defence should not therefore have been struck out Instead the respondents should have been called on to prove their case The appellants had by not filing any affidavits of evidence-in-chief of witnesses elected not to adduce any evidence The trial court would have had to decide the case on the evidence available at the close of the respondentsrsquo case25 The appeal is accordingly allowed and the whole of the judgment dated 22 February 1995 is set aside This matter is sent back to the district court for a new trial Pursuant to the provisions of O 24 r 17 the appellants are ordered to file a list of documents even if it be a nil list within one month from the date of this judgment failing which their defence herein shall be deemed struck out and the respondents shall be at liberty to enter judgment against the appellants

Banque Cantonale Vaudoise v RBG Resources plc and Another [2004] 4 SLR 856- Facts- The first defendant RBG Resources plc (ldquoRBGrdquo) had engaged in transactions with various banks which

had either purchased metals from it or lent money to it on the security of metals Many of the metals were allegedly stored in warehouses operated by or on behalf of the second defendant Fujitrans (Singapore) Pte Ltd (ldquoFujitransrdquo) The plaintiff Banque Cantonale Vaudoise (ldquoBCVrdquo) was one of the banks which had transacted with RBG It had a claim against Fujitrans in respect of various groups of metals one of which was listed in Schedule 3 of its Re-Amended Statement of Claim (ldquothe Schedule 3 claimrdquo)

- An assistant registrar granted BCV summary judgment against Fujitrans Fujitrans appealed Before the appeal was heard Fujitrans filed an application for discovery of various categories of documents from BCV Consequently the appeal against summary judgment was held in abeyance An assistant registrar dismissed Fujitransrsquo discovery application save for one category of documents Fujitrans appealed against that decision as it wanted discovery and production of the remaining seven categories of documents

- Fujitransrsquo position was that it had proceeded with the discovery application first in order to show the court with certainty the information and documents which would be referred to by its banking expert Howard Palmer (ldquoPalmerrdquo) in his intended affidavit for the appeal against summary judgment Without knowing the final outcome of the discovery application and the documents to be obtained Fujitransrsquo application for leave would be speculative

- Held dismissing the appeal- Fujitransrsquo discovery application to the assistant registrar and its appeal against that decision were premature

By the time Fujitrans filed its discovery application summary judgment had already been granted to BCV for the Schedule 3 claim Accordingly the office of assistant registrar was functus officio as regards any subsequent discovery application save for claims which were not the subject of the summary judgment Therefore the discovery application could not and should not have been made to the assistant registrar at [12] [15] and [17]

- The discovery application could have been made to a judge in chambers only in the context of the pending summary judgment appeal It should have been made by way of a preliminary application in the appeal proper whereupon the question as to whether the appellant should be granted leave to adduce further evidence would have been considered first Alternatively Fujitrans could have filed the applications for discovery and leave to adduce further evidence contemporaneously and asked that they be heard together at [18] and [20]

- If it was speculative to seek leave without having discovery first it was even more speculative to seek discovery without obtaining leave first The discovery application should not have been made first as a discovery order in favour of Fujitrans would or might affect the outcome of the leave application It was for the judge hearing the leave application to decide whether to grant leave or not and if so leave could be granted subject to a successful discovery application at [22]

- As for the substantive discovery appeal before this court the main issue was the relevancy of the documents for which discovery was sought The application for discovery of the remaining seven categories of documents was in fact a fishing expedition It was obvious that Fujitransrsquo discovery application was an attempt to support its appeal against summary judgment The application was not for saving costs and was neither desirable nor necessary for disposing fairly of the cause or matter at [36] [54] and [55]

- [Observation Since Fujitrans would be appealing against this courtrsquos decision in the discovery appeal and it had not filed its leave application it should apply to a judge in chambers for leave to adduce evidence in respect of the summary judgment appeal and to include an application for leave to adduce evidence from

any successful application for discovery If the application was to be unsuccessful then Fujitrans could appeal against that decision to the Court of Appeal and that appeal should be heard together with the appeal against this courtrsquos decision Otherwise the Court of Appeal would have to give a decision which was not in the correct sequence at [24]

- Alternatively BCV could apply to a judge in chambers for a declaration that Fujitrans should not be permitted to adduce further evidence so that any dissatisfied party could thereafter appeal to the Court of Appeal which could then deal with that appeal and the appeal against this courtrsquos decision in the correct sequence at [25]]

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710Held dismissing both appeals(1) In their defence of fair comment in the 1987 action the first and third defendants were not able to particularize the steps OCBC failed to take to ensure that confidential matters were not publicly disclosed and sought to interrogate the bank on what steps the bank had or had not taken This was not permissible The judicial commissioner was right in holding that their interrogatories were fishing(2) The categories of documents the defendants sought in their application for a further and better list of documents in the 1987 action were extremely wide and virtually none of them bore any relevance to the issues raised by the defences The aim of this application was no different from that of the application for leave to serve the interrogatories It was an attempt to mount a comprehensive discovery with the hope of finding something useful for their case(3) The sting of the libel in the 1988 action was the imputation of recklessness irresponsibility and mischievousness on Wrightrsquos part in writing the letter to the newspaper The material issue turned on the state of Wrightrsquos mind at the time he wrote the letter and not whether what he wrote was true or false The classes of documents in respect of which Wright sought discovery had no bearing on that issue They were substantially internal documents of OCBC of which he had absolutely no knowledge They were also not necessary for disposing fairly of the cause or matter or for saving costs The extreme width and lack of specificity of the classes of documents sought also indicated that Wright was lsquofishingrsquo for material to make good his assertions of OCBCrsquos breach of confidentiality(4) The two actions were inextricably intertwined and arose out of the same set of facts To allow Wright discovery of these categories of documents would in effect enable Wright to circumvent Chao Jrsquos order in the 1987 action That was not permissible(5) The application for further and better particulars of the defence in the 1988 action was substantially framed in the form of interrogatories and covered the same ground as the application for discovery Wright was accordingly not entitled to the particulars sought(6) Both the appeals were against the exercise of judicial discretion in relation to interlocutory issues In the absence of clear error of law or principle the appellate court should not interfere No such error of law or principle had been made out

o Can blank out parts of docs where private and confidential ndash there is law to support this Court to make sure that no irrelevcant parts Gene capital v bankerrsquos trust

First conseq therefore =gt other party can apply for discovery

13 Other consequences of failure to comply with discovery order

1048708 O 24 r 16(a) Action dismissed or defence struck out and judgment entered - O 24 r 16(1)(b) Committal of party failing to comply - O 24 r 16(2)(c) Committal of solicitor who fails to notify client of the order for discovery - O 24 r 16(4) - distinct from other

duties of solicitor in relation to discovery(d) inability to rely on undisclosed documents save with leave - O 24 r 16(5)

Main Principles ndash analysis applies throughout civ pro course any type of order ndash these apply- bull Court will usually make an lsquounless orderrsquo in the first instance Ie court will say since you havenrsquot

complied give you x time failing which your claim or defence is struck out- As person who applied for unless order ndash most pple then apply to court for order that action is struck off

o Silly because this allows pther party to plead oral extension of time- bull Disobedience of an unless order is likely to amount to contumelious behaviour (ie contempt)

- bull In order to avoid the dire consequences onus is on defaulter to show that o 1 there was no intention to ignore the peremptory order and o 2 that the failure to obey was due to extraneous circumstances Syed Mohamed Abdul Muthaliff v

Arjan Bhisham Chotrani [1999] 1 SLR 750o but court also said not off the hook necessarily ndash in face of neg competence or sheer indolence Ie

at heart of it need to show that had made positive efforts Must be sufficient efforts (prej to other side ndash secondary stage)

- bull Once an unless order is breached the opposing party can either apply for a final order (see above) or write to the Registry with a suitable draft order (this is correct procedure) Changhe International Investments Pte Ltd v BIL [2004] 4 SLR 449

- bull An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a contract Wiltopps (Asia) Ltd v Drew amp Napier [2000] 3 SLR 244

o applied for extension of time unless order obtained kike consent operates ilke a contract ndash cannot set it aside Can only set aside by filing fresh application pleading undue influence etc most have fresh proceedings so never consent to an unless order

Wiltopps (Asia) Ltd v Drew amp Napier (sued as a firm) and Another [2000] 3 SLR 244FactsThe present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their conduct of the proceedings After the writ of summons was filed in May 1993 there was considerable procrastination by the plaintiffs in proceeding with the action In October 1997 the court ordered affidavits of evidence-in-chief to be filed and exchanged within two months The order listed the witnesses the plaintiffs intended to call After various applications for extension of time for filing the affidavits the defendantsrsquo solicitors set a deadline by which the exchange of affidavits was to take place There was no exchange by the plaintiffs by the deadline and the defendantsrsquo solicitors applied for an order that unless the plaintiffs filed and served on the defendants the affidavits of evidence-in-chief of their witnesses within three days the plaintiffsrsquo action would be dismissed At the hearing of the application the plaintiffsrsquo solicitors offered to accept the unless order provided that they were given seven days instead of three This was agreed to by the defendantsrsquo solicitors and a consent order was made which required the plaintiffs to make the necessary exchange within seven days and in default the plaintiffsrsquo action would be dismissed with costs without further orderThe plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date The plaintiffsrsquo solicitors then applied for an extension of time to comply with the unless order The application was however later withdrawn at the hearing Subsequently the defendantsrsquo solicitors applied for and obtained a default judgment dismissing the plaintiffsrsquo action on the basis of their non-compliance with the unless order The plaintiffsrsquo solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar The plaintiffs appealed against the decisionHeld dismissing the appeal(1) The words ldquoby consentrdquo in the unless order could either evidence a real contract between the parties or could evidence an order made without obligation by the parties In the present case the words in the unless order gave effect to the contract between the parties The order had been made on the basis of the plaintiffs solicitorsrsquo offer to consent if they were given seven days instead of three and which offer was accepted by the defendantsrsquo solicitors There was clearly consideration flowing from the defendants to the plaintiffs(2) The parties were bound by the unless order that was made with their consent If the plaintiffs failed to comply with the terms of the unless order they would be able to avoid the default judgment only if the unless order itself was set aside A judgment or order by consent was binding until it was set aside and fresh proceedings must be commenced to set aside a consent order(3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the affidavit of one of their witnesses by the prescribed deadline The application for extension of time of the unless order was withdrawn and thus the unless order remained in effect The plaintiffsrsquo failure to comply with the unless order was due to their own default and not because they were prevented by the defendantsrsquo solicitors(4) Once the default occurred the unless order operated to dismiss the action ldquowithout further orderrdquo There was no question of setting aside the default judgment which was a consequence of the unless order and the

subsequent default Even if the court had the discretion to interfere with the default judgment the plaintiffsrsquo contumacious and contumelious conduct in this case did not justify such exercise in their favourPer curiamOn the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it To hold otherwise would dilute the utility of such consent orders

Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449FactsThe appellantsplaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar The defendantsrsquo counsel made an application by summons-in-chambers to perfect the unless order Plaintiffsrsquo counsel attended the hearing on 8 March 2000 at which the assistant registrar dismissed the plaintiffsrsquo claim Plaintiffsrsquo counsel did not appealLater the plaintiffs engaged new solicitors who made an application that the Registrar set aside the order of 8 March 2000 At the hearing on 14 June 2000 defendantsrsquo counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar The plaintiffsrsquo rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order The assistant registrar after hearing the point on jurisdiction dismissed the plaintiffsrsquo application without hearing the merits The plaintiffs appealedHeld dismissing the appeal(1) The order of 8 March 2000 by the assistant registrar was right Procedurally the assistant registrar in this application could not entertain the plaintiffsrsquo application and could not normally vary another assistant registrarrsquos order as he lacked jurisdiction to do so(2) An unless order generally took effect without further order However the order had to be perfected in the absence of specific rules relating to perfection(3) There were two paths to perfecting such an order The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with If the draft order was approved and it was faired and extracted the unless order was perfected(4) The second was by the party availing itself of the general application procedure of the court to achieve the same end(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach The plaintiffs could not re-litigate the same matter save by way of appeal which they did not file

The Bonito [2001] 3 SLR 32

FactsFollowing a collision between the appellantsrsquo vessel Bonito and the respondentsrsquo vessel Ah Lam II the respondents commenced an admiralty action in rem against the appellants Subsequently the parties reached a settlement under which unless the quantum of damages was agreed there was to be a reference to the registrar for damages to be assessed At a pre-trial conference on 27 March 1997 counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum once the discovery of documents was completed and counsel for the respondents said that the prospects of a settlement were good Nevertheless the assistant registrar made an ldquounless orderrdquo to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997 failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed failing which the action was to stand dismissed with costsSubsequently the parties required more time for the discovery of documents and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages At the hearings on 18 July 1997 and 3 September 1997 orders were made extending the time to 19 October 1997 and 30 November 1997 respectively In allowing the extensions the assistant registrar did not expressly make a default provision in either of the ordersIn March 1999 the appellantsrsquo solicitors informed the respondentsrsquo solicitors that the action had been dismissed In April 2000 the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so In May 2000 the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000 Subsequently

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

17 In the present case the plaintiff as a customer or former customer of the banks would have a right to the documents subject to the payment of copying and other related charges

18 In the event the plaintiff who did not take steps to get the documents from the banks opposed the defendantrsquos efforts to get them from the same source

hellip40 Having examined the plaintiffrsquos objections and finding no merits in them I granted the defendantrsquos application

o diff test wrt what doc need to discover and what you are entitled to extract fr other side by means of application to court

o 1 court orders you to file a list of docs (client) ndash at time of fiing test is -gto 2 if you want more doc file more doc appicaitn ndash court will apply a broader test in o24 r12 ndash this is the test

is Peruvian ndash far broader than first test

Order for discovery (O 24 r 1)1 mdash(1) Subject to this Rule and Rules 2 and 7 the Court may at any time order any party to a cause or matter (whether begun by writ originating summons or otherwise) to give discovery by making and serving on any other party a list of the documents which are or have been in his possession custody or power and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party (2) The documents which a party to a cause or matter may be ordered to discover under paragraph (1) are as follows (a) the documents on which the party relies or will rely and (b) the documents which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case (3) An order under this Rule may be limited to such documents or classes of documents only or to only such of the matters in question in the cause or matter as may be specified in the order

- discovery is limited to classes of documents in O 24 r 1(2) (a) document on which party relies will rely (b) document which could (i) adversely affect own case or (ii) adversely affect support another

partyrsquos case [compare Compagnie Financiere Et Commericale Du Pacifique v Peruvian Guano Co (1882) 11 QBD 55]

3 Continuing Obligation- 1048708 O 24 r 8

Duty to discover continues throughout proceedings (O 24 r 8)8 After the making of any order under Rule 1 or 5 the party required to give discovery under any such order shall remain under a duty to continue to give discovery of all documents falling within the ambit of such order until the proceedings in which the order was made are concluded

- equivalent of the common law principle that giving discovery of documents is a continuing obligation- discovery of new documents can be done by means of a supplemental list of documents- counsel oblig to advise client ot file on last day if a lot of documents- court in interest of justice has taken solicitor at task ndash if his client fails in discovery oblig May win case

based on withholding docs Parties are open about disclosingerlvant docs So solicitor must be careful abt discharging duties to court

4 basis for ordering discovery

Discovery to be ordered only if necessary (O 24 r 7)7 On the hearing of an application for an order under Rule 1 5 or 6 the Court may if satisfied that discovery is not necessary or not necessary at that stage of the cause or matter dismiss or as the case may be adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs

- Dolling barker v merret 1990- Wallace smith trust v deloitte Haskins and sells 1997

5 purpose and nature of discovery

kuah kok kim v Ernst and young 1997 1 SLR 169FactsThe appellants were minority shareholders of a company who agreed to sell their shares to the majority shareholders at a price to be valued The respondents were instructed to carry out a non-speaking valuation and they valued the shares at $215 per share The shares were then sold at that price Subsequently the appellants obtained a valuation from another accounting firm which valued the shares between $317 and $326 each and also gave a brief statement of the various methods of valuation which they had used and the methods which they considered inappropriate The appellants requested the respondents to disclose their basis of valuation but the respondents refused stating that they were not required to do so as they had agreed to a non-speaking valuationThe appellants commenced proceedings pursuant to O 24 r 7A of the Rules of the Supreme Court 1990 for pre-action discovery of documents and working papers which the respondents had referred to or used in determining their valuation to enable the appellants to decide whether there had been a breach of contract or negligence on the part of the respondents and thus to decide whether to bring an action against them The assistant registrar granted the application but when the matter came before the trial judge he allowed the appeal in part and varied the order to exclude working papers and documents created or prepared by the respondent The appellants appealedHeld 55 We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings56 In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceedinghelliphellip59 Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition60 It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents61 In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

reebok international v royal corp 1992 2 SLR 136The Riddick principle15 The first principle (for convenience I shall refer to it as lsquothe Riddick principlersquo) is that where a party to litigation has been ordered to give discovery the other party may not use the information so obtained for a collateral or improper purpose ie for any purpose other than the further pursuing of the action in which the discovery is given In the absence of an express undertaking given to the court there is implied an undertaking that the discovering party may not use the information against the other party for any other improper or collateral purpose The rationale for the undertaking is the encouragement of full and frank disclosure in court proceedings in the interest of administration of justice The Riddick principle has been applied in cases like Home Office v Harman Riddick v Thames Board Mills Halcon International Inc v Shell Transport amp Trading Co Sybron and Sim Leng Chua v JE Manghardt In Manghardt this court held following Riddick that a defamatory letter disclosed by the defendant in another action before the High Court between the same parties could not be used by the plaintiff to launch a libel action against the defendant

16 The Riddick principle is not an absolute principle The court has a discretion to release or modify the undertaking whether express or implied In Crest Homes Lord Oliver of Aylmerton (whose judgment was concurred to by all the other members of the House) saidYour Lordships have been referred to a number of reported cases in which application has been made for the use of documents obtained under Anton Piller orders or on general discovery for the purpose of proceedings other than those in which the order was made Examples were Halcon International Inc v Shell Transport amp Trading Co and Sybron Corp v Barclays Bank plc I do notthink that it would be helpful to review these authorities for they are no more than examples and they illustrate no general principle beyond this that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery

6 determination of issues prioer to discovery

Order for determination of issue etc before discovery (O 24 r 2)2 mdash(1) Where on an application for an order under Rule 1 it appears to the Court that any issue or question in the cause or matter should be determined before any discovery of documents is made by the parties the Court may order that that issue or question be determined first (2) Where in an action begun by writ an order is made under this Rule for the determination of an issue or question Order 25 Rules 2 to 7 shall with the omission of so much of Rule 7 (1) as requires parties to serve a notice specifying the orders and directions which they desire and with any other necessary modifications apply as if the application on which the order was made were a summons for directions

7 pre action discovery- 61 and 63-64 = procedure- purpose ndash 65- privilege ndash 67a- terms of order ndash 66 and 69

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) An originating summons under paragraph (1) or a summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court (b) in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both and that the person against whom the order is sought is likely to have or have had them in his possession custody or power (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order for the discovery of documents before the commencement of proceedings or for the discovery of documents by a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just (6) An order for the discovery of documents may mdash (a) be made conditional on the applicantrsquos giving security for the costs of the person against whom it is made or on such other terms if any as the Court thinks just and (b) require the person against whom the order is made to make an affidavit stating whether the documents specified or described in the order are or at any time have been in his possession custody or power and if not then in his possession custody or power when he parted with them and what has become of them (7) No person shall be compelled by virtue of such an order to produce any document which he could not be compelled to produce mdash

(a) in the case of an originating summons under paragraph (1) if the subsequent proceedings had already been commenced or (b) in the case of a summons under paragraph (2) if he had been served with a subpoena to produce documents1 at the trial (8) For the purpose of Rules 10 and 11 an application for an order under this Rule shall be treated as a cause or matter between the applicant and the person against whom the order is sought (9) Unless the Court orders otherwise where an application is made in accordance with this Rule for an order the person against whom the order is sought shall be entitled to his costs of the application and of complying with any order made thereon on an indemnity basis

- Getting relevant doc before proceedings from Someone protential party Or not unvolved directly in litigation

o Rationale ndash u are entitled to get doc to check whether have case or not - 1048708 O 24 r 6 (1)- 1048708 Procedure is the same whether person from whom discovery sought is a potential party or not

- application by Originating Summons and supporting affidavit - affidavit to state grounds of application material facts pertaining to intended proceedings and

whether person against whom order sought likely to be a party ndash O24 r 6(3)(a) - it is necessary to describe or specify the documents sought ndash O24 r 6(3)(b) describe tpe of class

of documents

- Affidavit must also state the relevance of documents sought and state that person is likely to have documents in possession custody or power

- It is accepted that at this stage the Plaintiff may not know whether he has a viable claim against the Defendant The rule is there to assist the Plaintiff But Plaintiff must set out substance of claim and also state the cause of action to enable a potential Defendant to know the essence of the complaint This is to prevent fishing expeditions

Kuah Kok Kim v Ernst amp Young [1997] 1 SLR 169 CA ndash donrsquot need to specify individual doc Just describe type of class

- Even if the documents are relevant they must meet criteria under O24 r 7 namely whether the discovery is necessary for fair disposal of the proceedings or for the saving of costs

Bayerische Hypo ndash und Vereinsback AG V APB [2004] SGHC 155 ndash fair disposal test Test of relevcancy is bery broad Court esercises some limits

Bank defrauded asking for pre action discovery against APB ndash court said even if doc is relevant must demonstrate a necessity for disclosure Counsel argued that want to narrow issues since going ot sue them anyway Court said that he knew exactly what he was going ot sue for so he shd just go for normnal discovery in any case since going to trial anyway Pre trial discovery only created to prevent unnec trials and writs Not to allow unnec appkications where trial going to proceed anyway Since party certain

8 discovery between parties and how to disclose

- order 24 rule 1- 1048708 List of documents in Form 37 and Affidavit verifying list in Form 38

Form of list and affidavit (O 24 r 3)3 mdash(1) A list of documents made in compliance with an order under Rule 1 must be in Form 37 and must enumerate the documents in a convenient order and as shortly as possible but describing each of them or in the case of bundles of documents of the same nature each bundle sufficiently to enable it to be identified (2) If it is desired to claim that any documents are privileged from production the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege (3) An affidavit made under Rule 1 (1) verifying a list of documents must be in Form 38

- 1048708 List divided into 2 Schedules Schedule 1

documents in possession custody power Part 1 No privilege applies ndash oblig is to serially list each item Cannot be generic in

labeling must list each document cook v smith ndash see case

Part 2 Privileged documents ndash not nec to enumerate doc one by one Schedule 2

documents previously in possession custody power need to give details of when documents last in possession and what has become of them

ndash must state Otherwise opp party can strike out action because no proper discovery

9 Order 24 r3(2) ndash Privilege

- dont inadvertently disclose

The Patraikos 2 [2001] 4 SLR 308- Facts- The plaintiffsrsquo cargo was damaged when the defendantsrsquo vessel (the lsquovesselrsquo) on which it was loaded ran

aground The plaintiffs claimed for damage to the cargo contending amongst others that the defendants breached the Hague Rules (the lsquoRulesrsquo) by engaging a second officer (lsquoOrlandarsquo) who was involved in the grounding of another ship (the lsquoSaronikos IIrsquo) previously

- The plaintiffs were dissatisfied with the defendantsrsquo list of documents for discovery and successfully applied for a further and better list of documents The defendantsrsquo appealed against the following set of documents ordered to be disclosed

(1) Various survey reports regarding the vesselrsquos construction (2) Two faxes from their solicitors (lsquoSRTrsquo) to their managing agents (lsquoDioryxrsquo) (3) ndash (5) Various documents relating to the vesselrsquos seaworthiness and (6) Documents pertaining to the grounding of the Saronikos II

o Held dismissing the appealo (1) Discovery of particular documents would only be ordered if they lsquorelate to matters in question in the

cause or matterrsquo O 24 r 7(3) Rules of Court A document related to the matters in question if it - (a) would be evidence on any issue (b) contained information which might enable the party requiring it to either advance his own case or to damage his adversaryrsquos or (c) might fairly lead him to a train of inquiry which may have either of the consequences in (b) To print it more simply if it threw light on the case the document related to matters in question

o (2) A ship must meet various criteria before it was deemed lsquoseaworthyrsquo Hence item (1) documents constituted evidence as to the vesselrsquos seaworthiness which was a matter in question Furthermore the defendants had implied that they were relevant as they had included them in their list of documents

o (3) The faxes in item (2) would throw light on the true qualifications of the vesselrsquos Chief Officer (lsquoSporidisrsquo) at the time of the grounding SRT and Dioryx had broached this issue and Dioryxrsquos practice of employing officers for their experience and not solely on their paper qualifications Sporidisrsquo qualifications was relevant as it might support the claim that the defendants failed to properly man the vessel as required by art III r 1(b) of the Rules Furthermore the faxes were not privileged as the defendants failed to show that they either reflected their instructions to SRT or gave an indication of the legal advice that SRT would be giving them

o (4) The documents in items (3) (4) and (5) were matters in question as they related to the vesselrsquos seaworthiness Furthermore there was no evidence that the volume of documents under item (4) would be so massive such as to make discovery oppressive

o (5) As Orlanda was on the bridge of the Saronikos II when it ran aground the documents in item (6) were relevant If they indicated that the grounding resulted from Orlandarsquos incompetence or negligence then the plaintiffs were entitled to use the evidence to argue that the defendants in engaging Orlanda despite knowing his past employment history failed to properly man the vessel

o Per Curiamo Apart from the statutory protection afforded by s 128(1) of the Evidence Act (Cap 97 1997 Ed) to

communications between lawyers and their clients communications between (a) the clientrsquos legal advisers and third parties if made for the purpose of pending or contemplated litigation and (b) the client or his agent and third parties if made for the purpose of obtaining information to be submitted to the clientrsquos legal advisers for the purpose of obtaining advice on pending or contemplated litigation were protected as well

- Types of privilege 1048708 Legal professional privilege ndash most usual Stock list ndash lsquoall correspondence governed by legal

proff privilege ie corresp bet lawyer and clientrsquo 1048708 Litigation privilege

1048708 Privilege against self-incrimination 1048708 Public interest privilege ndash O24 r15

Document disclosure of which would be injurious to public interest Saving (O 24 r 15)15 Rules 1 to 14 shall be without prejudice to any rule of law which authorises or requires the withholding of any document on the ground that the disclosure of it would be injurious to the public interest

1048708 Without Prejudice communications- Facts upon which privilege is claimed must be set out in the affidavit Gardner v Irvin [1878] 4 Ex D49- See also O24 r 19 ndash other party who inspected by mistake not allowed to rely on those doc unless cout

grants leave This is where he only inspected the doc itself- Whre included in long klist of doc and handed to other side ndash no specific rules need to take out application

and how this mistake arose

10 types of docs to be disclosed ndash order 24 r12

Wright v Times Business Publications Ltd amp Anor [1991] 3 MLJ 12- These rules are identical with the English rules O 24 rr 7(1) and 8 except that the English O 24 r 8 applies

also to discovery before commencement of proceedings - The principles underlying discovery were enunciated as long ago as 1882 by Brett LJ in The Compagnie

Financiere Et Commerciale Du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 They are as applicable today as they were then under the relevant English Rules of Supreme Court 1875 O XXX1 r 12 At pp 62-63 of the report Brett LJ stated the principle as follows

- The doctrine seems to me to go further than that and to go as far as the principle I am about to lay down It seems to me that every document relates to the matters in question in the action which not only would be evidence upon any issue but also which it is reasonable to suppose contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary I have put the words `either directly or indirectly` because it seems to me a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of inquiry which may have either of these two consequences

- Both sides have relied heavily on this oft quoted passage OCBC to show that the specified class of documents must be relevant to the issue raised by the plea of justification and the particulars relied upon by placing emphasis on the phrase `it is reasonable to suppose` and Norman Wright by suggesting that any document or class of documents which will show or lead to a train of inquiry which will show the truth or falsity of whether OCBC had caused or permitted a breach of confidence or had either deliberately or through ignorance or carelessness broken any promise of confidentiality to the four bankers or were not able to keep confidential matters or information which should be kept confidential would be relevant since these were the real issues raised by the plea of justification and the particulars relied upon and not that he Norman Wright did not check the truth of the assertions he had made as contended by OCBC

- As is to be expected both sides are in serious contention as to what is the real issue raised by OCBC`s plea of justification and the particulars relied upon

- I will now deal with this question Mr Gray submits that the `sting` of the libel of which Norman Wright complains is that he was reckless irresponsible and mischievous because he wrote a letter containing unfounded allegations about OCBC

- hellipIn my view it is crucial to the question of discovery in this appeal to determine the real issue raised by the plea of justification and the particulars relied upon as if Mr Gray is right Norman Wright would not be entitled to discovery of the classes of documents requested for they being all internal documents belonging to OCBC of which he had no knowledge when he wrote his letter to the BT and accordingly not relevant

- The words of the unreserved apology (set out in full under the sub-heading The background) which gave rise to Norman Wright`s complaint are to be found in the second paragraph and read BT is satisfied and accepts that the statements concerning the Overseas-Chinese Banking Corp Ltd in the said letter were and are wholly unfounded (Emphasis added)

- The remainder of that paragraph is an expression of belief and the third paragraph is the apology for the alleged consequence of these words

- hellip Accordingly the classes of documents of which Norman Wright has got discovery by the order of the assistant registrar dated 4 October 1988 have no bearing whatsoever on what I have found to be the true issue in the 1988 proceedings and are therefore totally irrelevant

- An examination of the classes of documents all of which relate to the recruiting procedures adopted by OCBC and their internal procedures both generally and specifically to the four named bankers in question for maintaining confidentiality are not only irrelevant but also unnecessary either for disposing fairly of the cause or matter of for saving costs (O 24 r 8) in view of my finding on the issue raised by OCBC`s plea of justification and the particulars relied upon I find it difficult to imagine how an examination of these classes of documents can lead one to reasonably suppose that they might contain information which may fairly lead to a train of inquiry to damage OCBC`s plea of justification that Norman Wright failed or neglected to check out his assertions before making them The rule is stated in 13 Halsbury`s Laws of England (4th Ed) para 38 as f ollows Relevance must be tested by the pleadings and particulars and when particulars have been served which limit a particular issue the discovery on that issue is limited to the matter raised in the particulars

- The extreme width and lack of specificity of the classes of documents in question led Mr Gray to submit that Norman Wright had little idea of what went on in OCBC and was therefore embarking on a `fishing expedition` in the hope of `trawling` through a volume of unnecessary and irrelevant documents hoping that he would make good his assertions of breach of confidentiality on the part of OCBC either deliberately or through ignorance or carelessness or being unable to keep confidential matters which ought to be kept confidential I cannot but agree

- A further argument advanced by Mr Gray was that to allow Norman Wright to have the discovery he had succeeded in getting was to permit him to circumvent the order of Chao Hick Tin JC in the 1987 proceedings He conceded however that I would have to grapple with this question only in the event that I hold that the classes of documents in question were relevant to the issue of justification in the 1988 proceedings

- Having reached the conclusions I have I do not feel it necessary to grapple with this question or to deal with the numerous authorities that were cited to me on this point However since both counsel spent much time on this point I proceed to make some observations on the arguments

- The substance of Mr Gray`s submission was that even if Norman Wright was entitled to discovery of the particular classes of documents in question discovery should be denied as the irresistible inference was that Norman Wright`s underlying motive was to provide him with a defence in the 1987 proceedings He pointed out that the close similarity between the classes of documents sought in the 1988 proceedings and those sought in the 1987 proceedings bore this out In fact for all practical purposes they are identical He further submitted that it was difficult to believe that Norman Wright would have started the 1988 proceedings at all were it not his desire to achieve a collateral advantage in the 1987 proceedings

- Mr Milmo strongly resented these allegations of an ulterior motive which he submitted was mere conjecture on the part of Mr Gray His submission was that if the particular classes of documents of which discovery was sought in the 1988 proceedings were relevant then it was irrelevant that similar discovery was refused in the 1987 proceedings Furthermore there was an implied undertaking that documents obtained in one case would not be used in another case The court could always protect the party giving discovery by withholding production or inspection to a later date as suggested by Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 471 which I wa s urged to follow Jenkins J said It seems to me however that in the further and better affidavit of documents which I now propose to order it will be open to the defendant if so advised to say with respect to particular documents or a particular class of documents that those documents are for this or that reason especially confidential and that he objects to producing them except on an undertaking by the plaintiff in whatever form the defendant conceives would be adequate for his protection If on that the parties cannot agree as to the form of the undertaking then the matter can come before the court as a question concerning the terms if any which ought to be imposed on the plaintiffs as a condition of having production of those particular documents

- I have already drawn attention to the extreme close connection between the 1987 proceedings and the 1988 proceedings and whilst I would not go so far as to say that Norman Wright`s application in the 1988 proceedings were motivated wholly by an unworthy purpose it would not in my view be desirable in the circumstances of this case to allow discovery of the very classes of documents which were refused in the 1987 proceedings whilst the appeal in those proceedings was still pending even if I had found that they were relevant to the 1988 proceedings In coming to this conclusion I was guided by the words of Lord Oliver of Aylmerton who delivered the main speech in the House of Lords in Crest Homes plc v Marks amp Ors [1987] 2 All ER 1074 at p 1078 It is clearly established and has recently been affirmed in this House that a solicitor who in the course of discovery in an action obtains possession of copies of documents belonging to his client`s adversary gives an implied undertaking to the court not to use that material nor to allow it to be used for any purpose other than the proper conduct of that action on behalf of his client (see Home Office v Harman [1982] 1 All ER 532 [1983] 1 AC 280) It must not be used for any `collateral or ulterior` purpose to use the words of Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 470 approved

and adopted by Lord Diplock in Harman`s case [1982] 1 All ER 532 at p 536 [1983] 1 AC 280 at p 302 Thus for instance to use a document obtained on discovery in one action as the foundation for a claim in a different and wholly unrelated proceeding would be a clear breach of the implied undertaking (see Riddick v Thames Board Mills Ltd [1977]3 All ER 677 [1977] QB 881) It has recently been held by Scott J in Sybron Corp v Barclays Bank plc [1985] Ch 229 and this must in my judgment clearly be right that the implied undertaking applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind But the implied undertais one which is given to the court ordering discovery and it is clear and is not disputed by the appellants that it can in appropriate circumstances be released or modified by the court (Emphasis added)

- I must not of course pre-empt the Court of Appeal in the 1987 proceedings but as that judgment now stands and having regard to the allegations and counter-allegation of malice and what I discern to be the intensity with which these two proceedings are being conducted I would not be comfortable in relying on the implied undertaking which it is conceded exists that some information gleaned from these documents and stored in the mind would not be used u nwittingly in the conduct of the 1987 proceedings

11 limitation to discovery ndash order 24 rule 13

12 Application for specific discovery can be made against party

- If not satisfied with discovery made ndash can take out this order- 1048708 O 24 r 5-Order for discovery of particular documents (O 24 r 5)5 mdash(1) Subject to Rule 7 the Court may at any time on the application of any party to a cause or matter make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is or has at any time been in his possession custody or power and if not then in his possession custody or power when he parted with it and what has become of it (2) An order may be made against a party under this Rule notwithstanding that the party may already have made or been required to make a list of documents or an affidavit under Rule 1 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions (a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and (c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case (4) An order under this Rule shall not be made in any cause or matter in respect of any party before an order under Rule 1 has first been obtained in respect of that party unless in the opinion of the Court the order is necessary or desirable

- 1048708 Procedure SIC supported by affidavit affidavit will state belief of deponent that party from whom discovery is sought has or had

possession custody power of documents sought- 1048708 Expanded test of relevance for further discovery - O24 r 5(3)

document on which party relies will rely document which could adversely affect own case or adversely affect support another partyrsquos case document which could lead to party seeking discovery to a train of enquiry resulting in his

obtaining information which may

ndash adversely affect his own case orndash adversely affect support another partyrsquos casendash =gt very wide test

- test adopted from Compagnie Financiere v Peruvian Guano (1882) 11 QBD 55 where court held that document would be relevant if it is reasonable to suppose that it contains

information which would either directly or indirectly enable the party (requiring the discovery) either to advance his own case or damage the case of his adversary

broadly worded test to ensure that all relevant evidence will be made available to ensure that a dispute can be adjudicated fairly

- greater latitude as compared with O24 r 1 but discovery must be ldquonecessary for disposing fairly of the matter or for saving costsrdquo ndash O 24 r 7 Court should inspect the documents and review facts in issue and also whether documents are confidential ndash Wallace Smith v Deloitte Haskins [1997] 1 WLR 257

ndash discretion fo court Litmus test ndash broad- Court must balance need for discovery with risk of abuse of the discovery process - O 24 r 7- Even if documents are relevant discovery will not be ordered if they are not necessary for the fair disposal

of the dispute ndash Dolling-Baker v Merret [1990] 1 WLR 1205 ndash party had dispute with inusrnac epolicy with

insurance company Party found that insurance comp had similar dispute in arbitration with another part on same type of policy Prob not relevant but even if relevant not nec for disposal fairly or for saving csots in fact aggravating costs So if can show good reason why not relevant can gt them out

- also note the need to prevent ldquofishingrdquo ie seeking discovery of documents without demonstrating their need relevance

Be narrow Msut demonstrate relevancept to paras in pleadings and say that this is directly in issue Must be clear and precise about what you want

Norman Wright amp Ors v OCBC [1992] 2 SLR 710 Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil engineering Pte Ltd [2003] 1 SLR 75

SMS Pte Ltd v Power amp Energy Pte Ltd [1996] 1 SLR 767Facts

The respondent cargo owners SMS sued the appellant carriers Energy for damage caused to their cargo which SMS alleged was due to Energyrsquos breach of contract or breach of duty as bailee or negligence Energyrsquos defence was that (a) there was no evidence of loss or damage when the good were delivered and (b) SMS failed to commence their suit within one year of the date of delivery of the goods At the hearing Energy applied for the defence to be struck out under O 24 r 16 of the Rules of the Supreme Court (RSC) as SMS failed to comply with the order for discovery The application to strike out the defence was made orally and not by summons-in-chambers The trial judge exercising his discretion allowed Energyrsquos oral application and truck out the defence and entered judgment in favour of Energy SMS appealed arguing (a) that the trial judge erred in allowing Energy to make their striking out application orally and (b) the trial judge should have struck out Energyrsquos defence because the order for discovery was not an lsquounlessrsquo order

Heldhellip10 At the hearing of the action on 22 February 1995 the respondents applied under O 24 r 16 for the defence to be struck out and judgment to be entered for the respondents This rule provides that if an order for discovery is not complied with the court may where the party in breach is a defendant strike out the defence and enter judgment for the plaintiff The application was made orally and not by way of a summons-in-chambersThis explanation does inform why no discovery had been provided by the appellants and shows there was no suppression of documents by the appellants However even if they did not have any discoverable documents the appellants could and should have filed a nil list giving such particulars as they could of what documents were once in their possession and then verified the list by affidavit This they did not do and were wrong not to Did the appellantsrsquo failure to file a nil list warrant the defence being struck out and judgment being entered It would be appropriate to do so only if such failure created a real risk that a fair trial of the action would be impossible Whether this was so is dealt with shortly23 Furthermore in deciding whether or not to strike out the defence the learned trial judge does not appear to have applied the test whether failure to file the list of documents would have rendered a fair trial of this action impossible Applying this test and bearing in mind the relevant circumstances enumerated earlier in this courtrsquos judgment the failure of the appellants to file their list of documents did not render a fair trial of this action impossible In any event such a list would have been a nil list and the respondents would have been in no better or worse position than they were before the list was filed If the appellants had filed a nil list verified on affidavit the respondents would have had to accept it unless of course they had evidence to the contrary and subject to

their right to ask for discovery of particular documents as provided by O 24 r 7 As Harman LJ said in John Walker amp Sons Ltd v Henry Ost amp Co [1970] RPC 151 at p 154 ll 45ndash48True it is that one cannot when an affidavit of documents or a list of documents is produced file an affidavit to say lsquoWell I do not believe this man has told the truth or disclosed everything he ought torsquo This affidavit is as they say conclusive24 The defence should not therefore have been struck out Instead the respondents should have been called on to prove their case The appellants had by not filing any affidavits of evidence-in-chief of witnesses elected not to adduce any evidence The trial court would have had to decide the case on the evidence available at the close of the respondentsrsquo case25 The appeal is accordingly allowed and the whole of the judgment dated 22 February 1995 is set aside This matter is sent back to the district court for a new trial Pursuant to the provisions of O 24 r 17 the appellants are ordered to file a list of documents even if it be a nil list within one month from the date of this judgment failing which their defence herein shall be deemed struck out and the respondents shall be at liberty to enter judgment against the appellants

Banque Cantonale Vaudoise v RBG Resources plc and Another [2004] 4 SLR 856- Facts- The first defendant RBG Resources plc (ldquoRBGrdquo) had engaged in transactions with various banks which

had either purchased metals from it or lent money to it on the security of metals Many of the metals were allegedly stored in warehouses operated by or on behalf of the second defendant Fujitrans (Singapore) Pte Ltd (ldquoFujitransrdquo) The plaintiff Banque Cantonale Vaudoise (ldquoBCVrdquo) was one of the banks which had transacted with RBG It had a claim against Fujitrans in respect of various groups of metals one of which was listed in Schedule 3 of its Re-Amended Statement of Claim (ldquothe Schedule 3 claimrdquo)

- An assistant registrar granted BCV summary judgment against Fujitrans Fujitrans appealed Before the appeal was heard Fujitrans filed an application for discovery of various categories of documents from BCV Consequently the appeal against summary judgment was held in abeyance An assistant registrar dismissed Fujitransrsquo discovery application save for one category of documents Fujitrans appealed against that decision as it wanted discovery and production of the remaining seven categories of documents

- Fujitransrsquo position was that it had proceeded with the discovery application first in order to show the court with certainty the information and documents which would be referred to by its banking expert Howard Palmer (ldquoPalmerrdquo) in his intended affidavit for the appeal against summary judgment Without knowing the final outcome of the discovery application and the documents to be obtained Fujitransrsquo application for leave would be speculative

- Held dismissing the appeal- Fujitransrsquo discovery application to the assistant registrar and its appeal against that decision were premature

By the time Fujitrans filed its discovery application summary judgment had already been granted to BCV for the Schedule 3 claim Accordingly the office of assistant registrar was functus officio as regards any subsequent discovery application save for claims which were not the subject of the summary judgment Therefore the discovery application could not and should not have been made to the assistant registrar at [12] [15] and [17]

- The discovery application could have been made to a judge in chambers only in the context of the pending summary judgment appeal It should have been made by way of a preliminary application in the appeal proper whereupon the question as to whether the appellant should be granted leave to adduce further evidence would have been considered first Alternatively Fujitrans could have filed the applications for discovery and leave to adduce further evidence contemporaneously and asked that they be heard together at [18] and [20]

- If it was speculative to seek leave without having discovery first it was even more speculative to seek discovery without obtaining leave first The discovery application should not have been made first as a discovery order in favour of Fujitrans would or might affect the outcome of the leave application It was for the judge hearing the leave application to decide whether to grant leave or not and if so leave could be granted subject to a successful discovery application at [22]

- As for the substantive discovery appeal before this court the main issue was the relevancy of the documents for which discovery was sought The application for discovery of the remaining seven categories of documents was in fact a fishing expedition It was obvious that Fujitransrsquo discovery application was an attempt to support its appeal against summary judgment The application was not for saving costs and was neither desirable nor necessary for disposing fairly of the cause or matter at [36] [54] and [55]

- [Observation Since Fujitrans would be appealing against this courtrsquos decision in the discovery appeal and it had not filed its leave application it should apply to a judge in chambers for leave to adduce evidence in respect of the summary judgment appeal and to include an application for leave to adduce evidence from

any successful application for discovery If the application was to be unsuccessful then Fujitrans could appeal against that decision to the Court of Appeal and that appeal should be heard together with the appeal against this courtrsquos decision Otherwise the Court of Appeal would have to give a decision which was not in the correct sequence at [24]

- Alternatively BCV could apply to a judge in chambers for a declaration that Fujitrans should not be permitted to adduce further evidence so that any dissatisfied party could thereafter appeal to the Court of Appeal which could then deal with that appeal and the appeal against this courtrsquos decision in the correct sequence at [25]]

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710Held dismissing both appeals(1) In their defence of fair comment in the 1987 action the first and third defendants were not able to particularize the steps OCBC failed to take to ensure that confidential matters were not publicly disclosed and sought to interrogate the bank on what steps the bank had or had not taken This was not permissible The judicial commissioner was right in holding that their interrogatories were fishing(2) The categories of documents the defendants sought in their application for a further and better list of documents in the 1987 action were extremely wide and virtually none of them bore any relevance to the issues raised by the defences The aim of this application was no different from that of the application for leave to serve the interrogatories It was an attempt to mount a comprehensive discovery with the hope of finding something useful for their case(3) The sting of the libel in the 1988 action was the imputation of recklessness irresponsibility and mischievousness on Wrightrsquos part in writing the letter to the newspaper The material issue turned on the state of Wrightrsquos mind at the time he wrote the letter and not whether what he wrote was true or false The classes of documents in respect of which Wright sought discovery had no bearing on that issue They were substantially internal documents of OCBC of which he had absolutely no knowledge They were also not necessary for disposing fairly of the cause or matter or for saving costs The extreme width and lack of specificity of the classes of documents sought also indicated that Wright was lsquofishingrsquo for material to make good his assertions of OCBCrsquos breach of confidentiality(4) The two actions were inextricably intertwined and arose out of the same set of facts To allow Wright discovery of these categories of documents would in effect enable Wright to circumvent Chao Jrsquos order in the 1987 action That was not permissible(5) The application for further and better particulars of the defence in the 1988 action was substantially framed in the form of interrogatories and covered the same ground as the application for discovery Wright was accordingly not entitled to the particulars sought(6) Both the appeals were against the exercise of judicial discretion in relation to interlocutory issues In the absence of clear error of law or principle the appellate court should not interfere No such error of law or principle had been made out

o Can blank out parts of docs where private and confidential ndash there is law to support this Court to make sure that no irrelevcant parts Gene capital v bankerrsquos trust

First conseq therefore =gt other party can apply for discovery

13 Other consequences of failure to comply with discovery order

1048708 O 24 r 16(a) Action dismissed or defence struck out and judgment entered - O 24 r 16(1)(b) Committal of party failing to comply - O 24 r 16(2)(c) Committal of solicitor who fails to notify client of the order for discovery - O 24 r 16(4) - distinct from other

duties of solicitor in relation to discovery(d) inability to rely on undisclosed documents save with leave - O 24 r 16(5)

Main Principles ndash analysis applies throughout civ pro course any type of order ndash these apply- bull Court will usually make an lsquounless orderrsquo in the first instance Ie court will say since you havenrsquot

complied give you x time failing which your claim or defence is struck out- As person who applied for unless order ndash most pple then apply to court for order that action is struck off

o Silly because this allows pther party to plead oral extension of time- bull Disobedience of an unless order is likely to amount to contumelious behaviour (ie contempt)

- bull In order to avoid the dire consequences onus is on defaulter to show that o 1 there was no intention to ignore the peremptory order and o 2 that the failure to obey was due to extraneous circumstances Syed Mohamed Abdul Muthaliff v

Arjan Bhisham Chotrani [1999] 1 SLR 750o but court also said not off the hook necessarily ndash in face of neg competence or sheer indolence Ie

at heart of it need to show that had made positive efforts Must be sufficient efforts (prej to other side ndash secondary stage)

- bull Once an unless order is breached the opposing party can either apply for a final order (see above) or write to the Registry with a suitable draft order (this is correct procedure) Changhe International Investments Pte Ltd v BIL [2004] 4 SLR 449

- bull An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a contract Wiltopps (Asia) Ltd v Drew amp Napier [2000] 3 SLR 244

o applied for extension of time unless order obtained kike consent operates ilke a contract ndash cannot set it aside Can only set aside by filing fresh application pleading undue influence etc most have fresh proceedings so never consent to an unless order

Wiltopps (Asia) Ltd v Drew amp Napier (sued as a firm) and Another [2000] 3 SLR 244FactsThe present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their conduct of the proceedings After the writ of summons was filed in May 1993 there was considerable procrastination by the plaintiffs in proceeding with the action In October 1997 the court ordered affidavits of evidence-in-chief to be filed and exchanged within two months The order listed the witnesses the plaintiffs intended to call After various applications for extension of time for filing the affidavits the defendantsrsquo solicitors set a deadline by which the exchange of affidavits was to take place There was no exchange by the plaintiffs by the deadline and the defendantsrsquo solicitors applied for an order that unless the plaintiffs filed and served on the defendants the affidavits of evidence-in-chief of their witnesses within three days the plaintiffsrsquo action would be dismissed At the hearing of the application the plaintiffsrsquo solicitors offered to accept the unless order provided that they were given seven days instead of three This was agreed to by the defendantsrsquo solicitors and a consent order was made which required the plaintiffs to make the necessary exchange within seven days and in default the plaintiffsrsquo action would be dismissed with costs without further orderThe plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date The plaintiffsrsquo solicitors then applied for an extension of time to comply with the unless order The application was however later withdrawn at the hearing Subsequently the defendantsrsquo solicitors applied for and obtained a default judgment dismissing the plaintiffsrsquo action on the basis of their non-compliance with the unless order The plaintiffsrsquo solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar The plaintiffs appealed against the decisionHeld dismissing the appeal(1) The words ldquoby consentrdquo in the unless order could either evidence a real contract between the parties or could evidence an order made without obligation by the parties In the present case the words in the unless order gave effect to the contract between the parties The order had been made on the basis of the plaintiffs solicitorsrsquo offer to consent if they were given seven days instead of three and which offer was accepted by the defendantsrsquo solicitors There was clearly consideration flowing from the defendants to the plaintiffs(2) The parties were bound by the unless order that was made with their consent If the plaintiffs failed to comply with the terms of the unless order they would be able to avoid the default judgment only if the unless order itself was set aside A judgment or order by consent was binding until it was set aside and fresh proceedings must be commenced to set aside a consent order(3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the affidavit of one of their witnesses by the prescribed deadline The application for extension of time of the unless order was withdrawn and thus the unless order remained in effect The plaintiffsrsquo failure to comply with the unless order was due to their own default and not because they were prevented by the defendantsrsquo solicitors(4) Once the default occurred the unless order operated to dismiss the action ldquowithout further orderrdquo There was no question of setting aside the default judgment which was a consequence of the unless order and the

subsequent default Even if the court had the discretion to interfere with the default judgment the plaintiffsrsquo contumacious and contumelious conduct in this case did not justify such exercise in their favourPer curiamOn the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it To hold otherwise would dilute the utility of such consent orders

Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449FactsThe appellantsplaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar The defendantsrsquo counsel made an application by summons-in-chambers to perfect the unless order Plaintiffsrsquo counsel attended the hearing on 8 March 2000 at which the assistant registrar dismissed the plaintiffsrsquo claim Plaintiffsrsquo counsel did not appealLater the plaintiffs engaged new solicitors who made an application that the Registrar set aside the order of 8 March 2000 At the hearing on 14 June 2000 defendantsrsquo counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar The plaintiffsrsquo rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order The assistant registrar after hearing the point on jurisdiction dismissed the plaintiffsrsquo application without hearing the merits The plaintiffs appealedHeld dismissing the appeal(1) The order of 8 March 2000 by the assistant registrar was right Procedurally the assistant registrar in this application could not entertain the plaintiffsrsquo application and could not normally vary another assistant registrarrsquos order as he lacked jurisdiction to do so(2) An unless order generally took effect without further order However the order had to be perfected in the absence of specific rules relating to perfection(3) There were two paths to perfecting such an order The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with If the draft order was approved and it was faired and extracted the unless order was perfected(4) The second was by the party availing itself of the general application procedure of the court to achieve the same end(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach The plaintiffs could not re-litigate the same matter save by way of appeal which they did not file

The Bonito [2001] 3 SLR 32

FactsFollowing a collision between the appellantsrsquo vessel Bonito and the respondentsrsquo vessel Ah Lam II the respondents commenced an admiralty action in rem against the appellants Subsequently the parties reached a settlement under which unless the quantum of damages was agreed there was to be a reference to the registrar for damages to be assessed At a pre-trial conference on 27 March 1997 counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum once the discovery of documents was completed and counsel for the respondents said that the prospects of a settlement were good Nevertheless the assistant registrar made an ldquounless orderrdquo to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997 failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed failing which the action was to stand dismissed with costsSubsequently the parties required more time for the discovery of documents and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages At the hearings on 18 July 1997 and 3 September 1997 orders were made extending the time to 19 October 1997 and 30 November 1997 respectively In allowing the extensions the assistant registrar did not expressly make a default provision in either of the ordersIn March 1999 the appellantsrsquo solicitors informed the respondentsrsquo solicitors that the action had been dismissed In April 2000 the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so In May 2000 the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000 Subsequently

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

- Dolling barker v merret 1990- Wallace smith trust v deloitte Haskins and sells 1997

5 purpose and nature of discovery

kuah kok kim v Ernst and young 1997 1 SLR 169FactsThe appellants were minority shareholders of a company who agreed to sell their shares to the majority shareholders at a price to be valued The respondents were instructed to carry out a non-speaking valuation and they valued the shares at $215 per share The shares were then sold at that price Subsequently the appellants obtained a valuation from another accounting firm which valued the shares between $317 and $326 each and also gave a brief statement of the various methods of valuation which they had used and the methods which they considered inappropriate The appellants requested the respondents to disclose their basis of valuation but the respondents refused stating that they were not required to do so as they had agreed to a non-speaking valuationThe appellants commenced proceedings pursuant to O 24 r 7A of the Rules of the Supreme Court 1990 for pre-action discovery of documents and working papers which the respondents had referred to or used in determining their valuation to enable the appellants to decide whether there had been a breach of contract or negligence on the part of the respondents and thus to decide whether to bring an action against them The assistant registrar granted the application but when the matter came before the trial judge he allowed the appeal in part and varied the order to exclude working papers and documents created or prepared by the respondent The appellants appealedHeld 55 We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings56 In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceedinghelliphellip59 Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition60 It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents61 In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

reebok international v royal corp 1992 2 SLR 136The Riddick principle15 The first principle (for convenience I shall refer to it as lsquothe Riddick principlersquo) is that where a party to litigation has been ordered to give discovery the other party may not use the information so obtained for a collateral or improper purpose ie for any purpose other than the further pursuing of the action in which the discovery is given In the absence of an express undertaking given to the court there is implied an undertaking that the discovering party may not use the information against the other party for any other improper or collateral purpose The rationale for the undertaking is the encouragement of full and frank disclosure in court proceedings in the interest of administration of justice The Riddick principle has been applied in cases like Home Office v Harman Riddick v Thames Board Mills Halcon International Inc v Shell Transport amp Trading Co Sybron and Sim Leng Chua v JE Manghardt In Manghardt this court held following Riddick that a defamatory letter disclosed by the defendant in another action before the High Court between the same parties could not be used by the plaintiff to launch a libel action against the defendant

16 The Riddick principle is not an absolute principle The court has a discretion to release or modify the undertaking whether express or implied In Crest Homes Lord Oliver of Aylmerton (whose judgment was concurred to by all the other members of the House) saidYour Lordships have been referred to a number of reported cases in which application has been made for the use of documents obtained under Anton Piller orders or on general discovery for the purpose of proceedings other than those in which the order was made Examples were Halcon International Inc v Shell Transport amp Trading Co and Sybron Corp v Barclays Bank plc I do notthink that it would be helpful to review these authorities for they are no more than examples and they illustrate no general principle beyond this that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery

6 determination of issues prioer to discovery

Order for determination of issue etc before discovery (O 24 r 2)2 mdash(1) Where on an application for an order under Rule 1 it appears to the Court that any issue or question in the cause or matter should be determined before any discovery of documents is made by the parties the Court may order that that issue or question be determined first (2) Where in an action begun by writ an order is made under this Rule for the determination of an issue or question Order 25 Rules 2 to 7 shall with the omission of so much of Rule 7 (1) as requires parties to serve a notice specifying the orders and directions which they desire and with any other necessary modifications apply as if the application on which the order was made were a summons for directions

7 pre action discovery- 61 and 63-64 = procedure- purpose ndash 65- privilege ndash 67a- terms of order ndash 66 and 69

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) An originating summons under paragraph (1) or a summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court (b) in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both and that the person against whom the order is sought is likely to have or have had them in his possession custody or power (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order for the discovery of documents before the commencement of proceedings or for the discovery of documents by a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just (6) An order for the discovery of documents may mdash (a) be made conditional on the applicantrsquos giving security for the costs of the person against whom it is made or on such other terms if any as the Court thinks just and (b) require the person against whom the order is made to make an affidavit stating whether the documents specified or described in the order are or at any time have been in his possession custody or power and if not then in his possession custody or power when he parted with them and what has become of them (7) No person shall be compelled by virtue of such an order to produce any document which he could not be compelled to produce mdash

(a) in the case of an originating summons under paragraph (1) if the subsequent proceedings had already been commenced or (b) in the case of a summons under paragraph (2) if he had been served with a subpoena to produce documents1 at the trial (8) For the purpose of Rules 10 and 11 an application for an order under this Rule shall be treated as a cause or matter between the applicant and the person against whom the order is sought (9) Unless the Court orders otherwise where an application is made in accordance with this Rule for an order the person against whom the order is sought shall be entitled to his costs of the application and of complying with any order made thereon on an indemnity basis

- Getting relevant doc before proceedings from Someone protential party Or not unvolved directly in litigation

o Rationale ndash u are entitled to get doc to check whether have case or not - 1048708 O 24 r 6 (1)- 1048708 Procedure is the same whether person from whom discovery sought is a potential party or not

- application by Originating Summons and supporting affidavit - affidavit to state grounds of application material facts pertaining to intended proceedings and

whether person against whom order sought likely to be a party ndash O24 r 6(3)(a) - it is necessary to describe or specify the documents sought ndash O24 r 6(3)(b) describe tpe of class

of documents

- Affidavit must also state the relevance of documents sought and state that person is likely to have documents in possession custody or power

- It is accepted that at this stage the Plaintiff may not know whether he has a viable claim against the Defendant The rule is there to assist the Plaintiff But Plaintiff must set out substance of claim and also state the cause of action to enable a potential Defendant to know the essence of the complaint This is to prevent fishing expeditions

Kuah Kok Kim v Ernst amp Young [1997] 1 SLR 169 CA ndash donrsquot need to specify individual doc Just describe type of class

- Even if the documents are relevant they must meet criteria under O24 r 7 namely whether the discovery is necessary for fair disposal of the proceedings or for the saving of costs

Bayerische Hypo ndash und Vereinsback AG V APB [2004] SGHC 155 ndash fair disposal test Test of relevcancy is bery broad Court esercises some limits

Bank defrauded asking for pre action discovery against APB ndash court said even if doc is relevant must demonstrate a necessity for disclosure Counsel argued that want to narrow issues since going ot sue them anyway Court said that he knew exactly what he was going ot sue for so he shd just go for normnal discovery in any case since going to trial anyway Pre trial discovery only created to prevent unnec trials and writs Not to allow unnec appkications where trial going to proceed anyway Since party certain

8 discovery between parties and how to disclose

- order 24 rule 1- 1048708 List of documents in Form 37 and Affidavit verifying list in Form 38

Form of list and affidavit (O 24 r 3)3 mdash(1) A list of documents made in compliance with an order under Rule 1 must be in Form 37 and must enumerate the documents in a convenient order and as shortly as possible but describing each of them or in the case of bundles of documents of the same nature each bundle sufficiently to enable it to be identified (2) If it is desired to claim that any documents are privileged from production the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege (3) An affidavit made under Rule 1 (1) verifying a list of documents must be in Form 38

- 1048708 List divided into 2 Schedules Schedule 1

documents in possession custody power Part 1 No privilege applies ndash oblig is to serially list each item Cannot be generic in

labeling must list each document cook v smith ndash see case

Part 2 Privileged documents ndash not nec to enumerate doc one by one Schedule 2

documents previously in possession custody power need to give details of when documents last in possession and what has become of them

ndash must state Otherwise opp party can strike out action because no proper discovery

9 Order 24 r3(2) ndash Privilege

- dont inadvertently disclose

The Patraikos 2 [2001] 4 SLR 308- Facts- The plaintiffsrsquo cargo was damaged when the defendantsrsquo vessel (the lsquovesselrsquo) on which it was loaded ran

aground The plaintiffs claimed for damage to the cargo contending amongst others that the defendants breached the Hague Rules (the lsquoRulesrsquo) by engaging a second officer (lsquoOrlandarsquo) who was involved in the grounding of another ship (the lsquoSaronikos IIrsquo) previously

- The plaintiffs were dissatisfied with the defendantsrsquo list of documents for discovery and successfully applied for a further and better list of documents The defendantsrsquo appealed against the following set of documents ordered to be disclosed

(1) Various survey reports regarding the vesselrsquos construction (2) Two faxes from their solicitors (lsquoSRTrsquo) to their managing agents (lsquoDioryxrsquo) (3) ndash (5) Various documents relating to the vesselrsquos seaworthiness and (6) Documents pertaining to the grounding of the Saronikos II

o Held dismissing the appealo (1) Discovery of particular documents would only be ordered if they lsquorelate to matters in question in the

cause or matterrsquo O 24 r 7(3) Rules of Court A document related to the matters in question if it - (a) would be evidence on any issue (b) contained information which might enable the party requiring it to either advance his own case or to damage his adversaryrsquos or (c) might fairly lead him to a train of inquiry which may have either of the consequences in (b) To print it more simply if it threw light on the case the document related to matters in question

o (2) A ship must meet various criteria before it was deemed lsquoseaworthyrsquo Hence item (1) documents constituted evidence as to the vesselrsquos seaworthiness which was a matter in question Furthermore the defendants had implied that they were relevant as they had included them in their list of documents

o (3) The faxes in item (2) would throw light on the true qualifications of the vesselrsquos Chief Officer (lsquoSporidisrsquo) at the time of the grounding SRT and Dioryx had broached this issue and Dioryxrsquos practice of employing officers for their experience and not solely on their paper qualifications Sporidisrsquo qualifications was relevant as it might support the claim that the defendants failed to properly man the vessel as required by art III r 1(b) of the Rules Furthermore the faxes were not privileged as the defendants failed to show that they either reflected their instructions to SRT or gave an indication of the legal advice that SRT would be giving them

o (4) The documents in items (3) (4) and (5) were matters in question as they related to the vesselrsquos seaworthiness Furthermore there was no evidence that the volume of documents under item (4) would be so massive such as to make discovery oppressive

o (5) As Orlanda was on the bridge of the Saronikos II when it ran aground the documents in item (6) were relevant If they indicated that the grounding resulted from Orlandarsquos incompetence or negligence then the plaintiffs were entitled to use the evidence to argue that the defendants in engaging Orlanda despite knowing his past employment history failed to properly man the vessel

o Per Curiamo Apart from the statutory protection afforded by s 128(1) of the Evidence Act (Cap 97 1997 Ed) to

communications between lawyers and their clients communications between (a) the clientrsquos legal advisers and third parties if made for the purpose of pending or contemplated litigation and (b) the client or his agent and third parties if made for the purpose of obtaining information to be submitted to the clientrsquos legal advisers for the purpose of obtaining advice on pending or contemplated litigation were protected as well

- Types of privilege 1048708 Legal professional privilege ndash most usual Stock list ndash lsquoall correspondence governed by legal

proff privilege ie corresp bet lawyer and clientrsquo 1048708 Litigation privilege

1048708 Privilege against self-incrimination 1048708 Public interest privilege ndash O24 r15

Document disclosure of which would be injurious to public interest Saving (O 24 r 15)15 Rules 1 to 14 shall be without prejudice to any rule of law which authorises or requires the withholding of any document on the ground that the disclosure of it would be injurious to the public interest

1048708 Without Prejudice communications- Facts upon which privilege is claimed must be set out in the affidavit Gardner v Irvin [1878] 4 Ex D49- See also O24 r 19 ndash other party who inspected by mistake not allowed to rely on those doc unless cout

grants leave This is where he only inspected the doc itself- Whre included in long klist of doc and handed to other side ndash no specific rules need to take out application

and how this mistake arose

10 types of docs to be disclosed ndash order 24 r12

Wright v Times Business Publications Ltd amp Anor [1991] 3 MLJ 12- These rules are identical with the English rules O 24 rr 7(1) and 8 except that the English O 24 r 8 applies

also to discovery before commencement of proceedings - The principles underlying discovery were enunciated as long ago as 1882 by Brett LJ in The Compagnie

Financiere Et Commerciale Du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 They are as applicable today as they were then under the relevant English Rules of Supreme Court 1875 O XXX1 r 12 At pp 62-63 of the report Brett LJ stated the principle as follows

- The doctrine seems to me to go further than that and to go as far as the principle I am about to lay down It seems to me that every document relates to the matters in question in the action which not only would be evidence upon any issue but also which it is reasonable to suppose contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary I have put the words `either directly or indirectly` because it seems to me a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of inquiry which may have either of these two consequences

- Both sides have relied heavily on this oft quoted passage OCBC to show that the specified class of documents must be relevant to the issue raised by the plea of justification and the particulars relied upon by placing emphasis on the phrase `it is reasonable to suppose` and Norman Wright by suggesting that any document or class of documents which will show or lead to a train of inquiry which will show the truth or falsity of whether OCBC had caused or permitted a breach of confidence or had either deliberately or through ignorance or carelessness broken any promise of confidentiality to the four bankers or were not able to keep confidential matters or information which should be kept confidential would be relevant since these were the real issues raised by the plea of justification and the particulars relied upon and not that he Norman Wright did not check the truth of the assertions he had made as contended by OCBC

- As is to be expected both sides are in serious contention as to what is the real issue raised by OCBC`s plea of justification and the particulars relied upon

- I will now deal with this question Mr Gray submits that the `sting` of the libel of which Norman Wright complains is that he was reckless irresponsible and mischievous because he wrote a letter containing unfounded allegations about OCBC

- hellipIn my view it is crucial to the question of discovery in this appeal to determine the real issue raised by the plea of justification and the particulars relied upon as if Mr Gray is right Norman Wright would not be entitled to discovery of the classes of documents requested for they being all internal documents belonging to OCBC of which he had no knowledge when he wrote his letter to the BT and accordingly not relevant

- The words of the unreserved apology (set out in full under the sub-heading The background) which gave rise to Norman Wright`s complaint are to be found in the second paragraph and read BT is satisfied and accepts that the statements concerning the Overseas-Chinese Banking Corp Ltd in the said letter were and are wholly unfounded (Emphasis added)

- The remainder of that paragraph is an expression of belief and the third paragraph is the apology for the alleged consequence of these words

- hellip Accordingly the classes of documents of which Norman Wright has got discovery by the order of the assistant registrar dated 4 October 1988 have no bearing whatsoever on what I have found to be the true issue in the 1988 proceedings and are therefore totally irrelevant

- An examination of the classes of documents all of which relate to the recruiting procedures adopted by OCBC and their internal procedures both generally and specifically to the four named bankers in question for maintaining confidentiality are not only irrelevant but also unnecessary either for disposing fairly of the cause or matter of for saving costs (O 24 r 8) in view of my finding on the issue raised by OCBC`s plea of justification and the particulars relied upon I find it difficult to imagine how an examination of these classes of documents can lead one to reasonably suppose that they might contain information which may fairly lead to a train of inquiry to damage OCBC`s plea of justification that Norman Wright failed or neglected to check out his assertions before making them The rule is stated in 13 Halsbury`s Laws of England (4th Ed) para 38 as f ollows Relevance must be tested by the pleadings and particulars and when particulars have been served which limit a particular issue the discovery on that issue is limited to the matter raised in the particulars

- The extreme width and lack of specificity of the classes of documents in question led Mr Gray to submit that Norman Wright had little idea of what went on in OCBC and was therefore embarking on a `fishing expedition` in the hope of `trawling` through a volume of unnecessary and irrelevant documents hoping that he would make good his assertions of breach of confidentiality on the part of OCBC either deliberately or through ignorance or carelessness or being unable to keep confidential matters which ought to be kept confidential I cannot but agree

- A further argument advanced by Mr Gray was that to allow Norman Wright to have the discovery he had succeeded in getting was to permit him to circumvent the order of Chao Hick Tin JC in the 1987 proceedings He conceded however that I would have to grapple with this question only in the event that I hold that the classes of documents in question were relevant to the issue of justification in the 1988 proceedings

- Having reached the conclusions I have I do not feel it necessary to grapple with this question or to deal with the numerous authorities that were cited to me on this point However since both counsel spent much time on this point I proceed to make some observations on the arguments

- The substance of Mr Gray`s submission was that even if Norman Wright was entitled to discovery of the particular classes of documents in question discovery should be denied as the irresistible inference was that Norman Wright`s underlying motive was to provide him with a defence in the 1987 proceedings He pointed out that the close similarity between the classes of documents sought in the 1988 proceedings and those sought in the 1987 proceedings bore this out In fact for all practical purposes they are identical He further submitted that it was difficult to believe that Norman Wright would have started the 1988 proceedings at all were it not his desire to achieve a collateral advantage in the 1987 proceedings

- Mr Milmo strongly resented these allegations of an ulterior motive which he submitted was mere conjecture on the part of Mr Gray His submission was that if the particular classes of documents of which discovery was sought in the 1988 proceedings were relevant then it was irrelevant that similar discovery was refused in the 1987 proceedings Furthermore there was an implied undertaking that documents obtained in one case would not be used in another case The court could always protect the party giving discovery by withholding production or inspection to a later date as suggested by Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 471 which I wa s urged to follow Jenkins J said It seems to me however that in the further and better affidavit of documents which I now propose to order it will be open to the defendant if so advised to say with respect to particular documents or a particular class of documents that those documents are for this or that reason especially confidential and that he objects to producing them except on an undertaking by the plaintiff in whatever form the defendant conceives would be adequate for his protection If on that the parties cannot agree as to the form of the undertaking then the matter can come before the court as a question concerning the terms if any which ought to be imposed on the plaintiffs as a condition of having production of those particular documents

- I have already drawn attention to the extreme close connection between the 1987 proceedings and the 1988 proceedings and whilst I would not go so far as to say that Norman Wright`s application in the 1988 proceedings were motivated wholly by an unworthy purpose it would not in my view be desirable in the circumstances of this case to allow discovery of the very classes of documents which were refused in the 1987 proceedings whilst the appeal in those proceedings was still pending even if I had found that they were relevant to the 1988 proceedings In coming to this conclusion I was guided by the words of Lord Oliver of Aylmerton who delivered the main speech in the House of Lords in Crest Homes plc v Marks amp Ors [1987] 2 All ER 1074 at p 1078 It is clearly established and has recently been affirmed in this House that a solicitor who in the course of discovery in an action obtains possession of copies of documents belonging to his client`s adversary gives an implied undertaking to the court not to use that material nor to allow it to be used for any purpose other than the proper conduct of that action on behalf of his client (see Home Office v Harman [1982] 1 All ER 532 [1983] 1 AC 280) It must not be used for any `collateral or ulterior` purpose to use the words of Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 470 approved

and adopted by Lord Diplock in Harman`s case [1982] 1 All ER 532 at p 536 [1983] 1 AC 280 at p 302 Thus for instance to use a document obtained on discovery in one action as the foundation for a claim in a different and wholly unrelated proceeding would be a clear breach of the implied undertaking (see Riddick v Thames Board Mills Ltd [1977]3 All ER 677 [1977] QB 881) It has recently been held by Scott J in Sybron Corp v Barclays Bank plc [1985] Ch 229 and this must in my judgment clearly be right that the implied undertaking applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind But the implied undertais one which is given to the court ordering discovery and it is clear and is not disputed by the appellants that it can in appropriate circumstances be released or modified by the court (Emphasis added)

- I must not of course pre-empt the Court of Appeal in the 1987 proceedings but as that judgment now stands and having regard to the allegations and counter-allegation of malice and what I discern to be the intensity with which these two proceedings are being conducted I would not be comfortable in relying on the implied undertaking which it is conceded exists that some information gleaned from these documents and stored in the mind would not be used u nwittingly in the conduct of the 1987 proceedings

11 limitation to discovery ndash order 24 rule 13

12 Application for specific discovery can be made against party

- If not satisfied with discovery made ndash can take out this order- 1048708 O 24 r 5-Order for discovery of particular documents (O 24 r 5)5 mdash(1) Subject to Rule 7 the Court may at any time on the application of any party to a cause or matter make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is or has at any time been in his possession custody or power and if not then in his possession custody or power when he parted with it and what has become of it (2) An order may be made against a party under this Rule notwithstanding that the party may already have made or been required to make a list of documents or an affidavit under Rule 1 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions (a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and (c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case (4) An order under this Rule shall not be made in any cause or matter in respect of any party before an order under Rule 1 has first been obtained in respect of that party unless in the opinion of the Court the order is necessary or desirable

- 1048708 Procedure SIC supported by affidavit affidavit will state belief of deponent that party from whom discovery is sought has or had

possession custody power of documents sought- 1048708 Expanded test of relevance for further discovery - O24 r 5(3)

document on which party relies will rely document which could adversely affect own case or adversely affect support another partyrsquos case document which could lead to party seeking discovery to a train of enquiry resulting in his

obtaining information which may

ndash adversely affect his own case orndash adversely affect support another partyrsquos casendash =gt very wide test

- test adopted from Compagnie Financiere v Peruvian Guano (1882) 11 QBD 55 where court held that document would be relevant if it is reasonable to suppose that it contains

information which would either directly or indirectly enable the party (requiring the discovery) either to advance his own case or damage the case of his adversary

broadly worded test to ensure that all relevant evidence will be made available to ensure that a dispute can be adjudicated fairly

- greater latitude as compared with O24 r 1 but discovery must be ldquonecessary for disposing fairly of the matter or for saving costsrdquo ndash O 24 r 7 Court should inspect the documents and review facts in issue and also whether documents are confidential ndash Wallace Smith v Deloitte Haskins [1997] 1 WLR 257

ndash discretion fo court Litmus test ndash broad- Court must balance need for discovery with risk of abuse of the discovery process - O 24 r 7- Even if documents are relevant discovery will not be ordered if they are not necessary for the fair disposal

of the dispute ndash Dolling-Baker v Merret [1990] 1 WLR 1205 ndash party had dispute with inusrnac epolicy with

insurance company Party found that insurance comp had similar dispute in arbitration with another part on same type of policy Prob not relevant but even if relevant not nec for disposal fairly or for saving csots in fact aggravating costs So if can show good reason why not relevant can gt them out

- also note the need to prevent ldquofishingrdquo ie seeking discovery of documents without demonstrating their need relevance

Be narrow Msut demonstrate relevancept to paras in pleadings and say that this is directly in issue Must be clear and precise about what you want

Norman Wright amp Ors v OCBC [1992] 2 SLR 710 Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil engineering Pte Ltd [2003] 1 SLR 75

SMS Pte Ltd v Power amp Energy Pte Ltd [1996] 1 SLR 767Facts

The respondent cargo owners SMS sued the appellant carriers Energy for damage caused to their cargo which SMS alleged was due to Energyrsquos breach of contract or breach of duty as bailee or negligence Energyrsquos defence was that (a) there was no evidence of loss or damage when the good were delivered and (b) SMS failed to commence their suit within one year of the date of delivery of the goods At the hearing Energy applied for the defence to be struck out under O 24 r 16 of the Rules of the Supreme Court (RSC) as SMS failed to comply with the order for discovery The application to strike out the defence was made orally and not by summons-in-chambers The trial judge exercising his discretion allowed Energyrsquos oral application and truck out the defence and entered judgment in favour of Energy SMS appealed arguing (a) that the trial judge erred in allowing Energy to make their striking out application orally and (b) the trial judge should have struck out Energyrsquos defence because the order for discovery was not an lsquounlessrsquo order

Heldhellip10 At the hearing of the action on 22 February 1995 the respondents applied under O 24 r 16 for the defence to be struck out and judgment to be entered for the respondents This rule provides that if an order for discovery is not complied with the court may where the party in breach is a defendant strike out the defence and enter judgment for the plaintiff The application was made orally and not by way of a summons-in-chambersThis explanation does inform why no discovery had been provided by the appellants and shows there was no suppression of documents by the appellants However even if they did not have any discoverable documents the appellants could and should have filed a nil list giving such particulars as they could of what documents were once in their possession and then verified the list by affidavit This they did not do and were wrong not to Did the appellantsrsquo failure to file a nil list warrant the defence being struck out and judgment being entered It would be appropriate to do so only if such failure created a real risk that a fair trial of the action would be impossible Whether this was so is dealt with shortly23 Furthermore in deciding whether or not to strike out the defence the learned trial judge does not appear to have applied the test whether failure to file the list of documents would have rendered a fair trial of this action impossible Applying this test and bearing in mind the relevant circumstances enumerated earlier in this courtrsquos judgment the failure of the appellants to file their list of documents did not render a fair trial of this action impossible In any event such a list would have been a nil list and the respondents would have been in no better or worse position than they were before the list was filed If the appellants had filed a nil list verified on affidavit the respondents would have had to accept it unless of course they had evidence to the contrary and subject to

their right to ask for discovery of particular documents as provided by O 24 r 7 As Harman LJ said in John Walker amp Sons Ltd v Henry Ost amp Co [1970] RPC 151 at p 154 ll 45ndash48True it is that one cannot when an affidavit of documents or a list of documents is produced file an affidavit to say lsquoWell I do not believe this man has told the truth or disclosed everything he ought torsquo This affidavit is as they say conclusive24 The defence should not therefore have been struck out Instead the respondents should have been called on to prove their case The appellants had by not filing any affidavits of evidence-in-chief of witnesses elected not to adduce any evidence The trial court would have had to decide the case on the evidence available at the close of the respondentsrsquo case25 The appeal is accordingly allowed and the whole of the judgment dated 22 February 1995 is set aside This matter is sent back to the district court for a new trial Pursuant to the provisions of O 24 r 17 the appellants are ordered to file a list of documents even if it be a nil list within one month from the date of this judgment failing which their defence herein shall be deemed struck out and the respondents shall be at liberty to enter judgment against the appellants

Banque Cantonale Vaudoise v RBG Resources plc and Another [2004] 4 SLR 856- Facts- The first defendant RBG Resources plc (ldquoRBGrdquo) had engaged in transactions with various banks which

had either purchased metals from it or lent money to it on the security of metals Many of the metals were allegedly stored in warehouses operated by or on behalf of the second defendant Fujitrans (Singapore) Pte Ltd (ldquoFujitransrdquo) The plaintiff Banque Cantonale Vaudoise (ldquoBCVrdquo) was one of the banks which had transacted with RBG It had a claim against Fujitrans in respect of various groups of metals one of which was listed in Schedule 3 of its Re-Amended Statement of Claim (ldquothe Schedule 3 claimrdquo)

- An assistant registrar granted BCV summary judgment against Fujitrans Fujitrans appealed Before the appeal was heard Fujitrans filed an application for discovery of various categories of documents from BCV Consequently the appeal against summary judgment was held in abeyance An assistant registrar dismissed Fujitransrsquo discovery application save for one category of documents Fujitrans appealed against that decision as it wanted discovery and production of the remaining seven categories of documents

- Fujitransrsquo position was that it had proceeded with the discovery application first in order to show the court with certainty the information and documents which would be referred to by its banking expert Howard Palmer (ldquoPalmerrdquo) in his intended affidavit for the appeal against summary judgment Without knowing the final outcome of the discovery application and the documents to be obtained Fujitransrsquo application for leave would be speculative

- Held dismissing the appeal- Fujitransrsquo discovery application to the assistant registrar and its appeal against that decision were premature

By the time Fujitrans filed its discovery application summary judgment had already been granted to BCV for the Schedule 3 claim Accordingly the office of assistant registrar was functus officio as regards any subsequent discovery application save for claims which were not the subject of the summary judgment Therefore the discovery application could not and should not have been made to the assistant registrar at [12] [15] and [17]

- The discovery application could have been made to a judge in chambers only in the context of the pending summary judgment appeal It should have been made by way of a preliminary application in the appeal proper whereupon the question as to whether the appellant should be granted leave to adduce further evidence would have been considered first Alternatively Fujitrans could have filed the applications for discovery and leave to adduce further evidence contemporaneously and asked that they be heard together at [18] and [20]

- If it was speculative to seek leave without having discovery first it was even more speculative to seek discovery without obtaining leave first The discovery application should not have been made first as a discovery order in favour of Fujitrans would or might affect the outcome of the leave application It was for the judge hearing the leave application to decide whether to grant leave or not and if so leave could be granted subject to a successful discovery application at [22]

- As for the substantive discovery appeal before this court the main issue was the relevancy of the documents for which discovery was sought The application for discovery of the remaining seven categories of documents was in fact a fishing expedition It was obvious that Fujitransrsquo discovery application was an attempt to support its appeal against summary judgment The application was not for saving costs and was neither desirable nor necessary for disposing fairly of the cause or matter at [36] [54] and [55]

- [Observation Since Fujitrans would be appealing against this courtrsquos decision in the discovery appeal and it had not filed its leave application it should apply to a judge in chambers for leave to adduce evidence in respect of the summary judgment appeal and to include an application for leave to adduce evidence from

any successful application for discovery If the application was to be unsuccessful then Fujitrans could appeal against that decision to the Court of Appeal and that appeal should be heard together with the appeal against this courtrsquos decision Otherwise the Court of Appeal would have to give a decision which was not in the correct sequence at [24]

- Alternatively BCV could apply to a judge in chambers for a declaration that Fujitrans should not be permitted to adduce further evidence so that any dissatisfied party could thereafter appeal to the Court of Appeal which could then deal with that appeal and the appeal against this courtrsquos decision in the correct sequence at [25]]

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710Held dismissing both appeals(1) In their defence of fair comment in the 1987 action the first and third defendants were not able to particularize the steps OCBC failed to take to ensure that confidential matters were not publicly disclosed and sought to interrogate the bank on what steps the bank had or had not taken This was not permissible The judicial commissioner was right in holding that their interrogatories were fishing(2) The categories of documents the defendants sought in their application for a further and better list of documents in the 1987 action were extremely wide and virtually none of them bore any relevance to the issues raised by the defences The aim of this application was no different from that of the application for leave to serve the interrogatories It was an attempt to mount a comprehensive discovery with the hope of finding something useful for their case(3) The sting of the libel in the 1988 action was the imputation of recklessness irresponsibility and mischievousness on Wrightrsquos part in writing the letter to the newspaper The material issue turned on the state of Wrightrsquos mind at the time he wrote the letter and not whether what he wrote was true or false The classes of documents in respect of which Wright sought discovery had no bearing on that issue They were substantially internal documents of OCBC of which he had absolutely no knowledge They were also not necessary for disposing fairly of the cause or matter or for saving costs The extreme width and lack of specificity of the classes of documents sought also indicated that Wright was lsquofishingrsquo for material to make good his assertions of OCBCrsquos breach of confidentiality(4) The two actions were inextricably intertwined and arose out of the same set of facts To allow Wright discovery of these categories of documents would in effect enable Wright to circumvent Chao Jrsquos order in the 1987 action That was not permissible(5) The application for further and better particulars of the defence in the 1988 action was substantially framed in the form of interrogatories and covered the same ground as the application for discovery Wright was accordingly not entitled to the particulars sought(6) Both the appeals were against the exercise of judicial discretion in relation to interlocutory issues In the absence of clear error of law or principle the appellate court should not interfere No such error of law or principle had been made out

o Can blank out parts of docs where private and confidential ndash there is law to support this Court to make sure that no irrelevcant parts Gene capital v bankerrsquos trust

First conseq therefore =gt other party can apply for discovery

13 Other consequences of failure to comply with discovery order

1048708 O 24 r 16(a) Action dismissed or defence struck out and judgment entered - O 24 r 16(1)(b) Committal of party failing to comply - O 24 r 16(2)(c) Committal of solicitor who fails to notify client of the order for discovery - O 24 r 16(4) - distinct from other

duties of solicitor in relation to discovery(d) inability to rely on undisclosed documents save with leave - O 24 r 16(5)

Main Principles ndash analysis applies throughout civ pro course any type of order ndash these apply- bull Court will usually make an lsquounless orderrsquo in the first instance Ie court will say since you havenrsquot

complied give you x time failing which your claim or defence is struck out- As person who applied for unless order ndash most pple then apply to court for order that action is struck off

o Silly because this allows pther party to plead oral extension of time- bull Disobedience of an unless order is likely to amount to contumelious behaviour (ie contempt)

- bull In order to avoid the dire consequences onus is on defaulter to show that o 1 there was no intention to ignore the peremptory order and o 2 that the failure to obey was due to extraneous circumstances Syed Mohamed Abdul Muthaliff v

Arjan Bhisham Chotrani [1999] 1 SLR 750o but court also said not off the hook necessarily ndash in face of neg competence or sheer indolence Ie

at heart of it need to show that had made positive efforts Must be sufficient efforts (prej to other side ndash secondary stage)

- bull Once an unless order is breached the opposing party can either apply for a final order (see above) or write to the Registry with a suitable draft order (this is correct procedure) Changhe International Investments Pte Ltd v BIL [2004] 4 SLR 449

- bull An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a contract Wiltopps (Asia) Ltd v Drew amp Napier [2000] 3 SLR 244

o applied for extension of time unless order obtained kike consent operates ilke a contract ndash cannot set it aside Can only set aside by filing fresh application pleading undue influence etc most have fresh proceedings so never consent to an unless order

Wiltopps (Asia) Ltd v Drew amp Napier (sued as a firm) and Another [2000] 3 SLR 244FactsThe present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their conduct of the proceedings After the writ of summons was filed in May 1993 there was considerable procrastination by the plaintiffs in proceeding with the action In October 1997 the court ordered affidavits of evidence-in-chief to be filed and exchanged within two months The order listed the witnesses the plaintiffs intended to call After various applications for extension of time for filing the affidavits the defendantsrsquo solicitors set a deadline by which the exchange of affidavits was to take place There was no exchange by the plaintiffs by the deadline and the defendantsrsquo solicitors applied for an order that unless the plaintiffs filed and served on the defendants the affidavits of evidence-in-chief of their witnesses within three days the plaintiffsrsquo action would be dismissed At the hearing of the application the plaintiffsrsquo solicitors offered to accept the unless order provided that they were given seven days instead of three This was agreed to by the defendantsrsquo solicitors and a consent order was made which required the plaintiffs to make the necessary exchange within seven days and in default the plaintiffsrsquo action would be dismissed with costs without further orderThe plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date The plaintiffsrsquo solicitors then applied for an extension of time to comply with the unless order The application was however later withdrawn at the hearing Subsequently the defendantsrsquo solicitors applied for and obtained a default judgment dismissing the plaintiffsrsquo action on the basis of their non-compliance with the unless order The plaintiffsrsquo solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar The plaintiffs appealed against the decisionHeld dismissing the appeal(1) The words ldquoby consentrdquo in the unless order could either evidence a real contract between the parties or could evidence an order made without obligation by the parties In the present case the words in the unless order gave effect to the contract between the parties The order had been made on the basis of the plaintiffs solicitorsrsquo offer to consent if they were given seven days instead of three and which offer was accepted by the defendantsrsquo solicitors There was clearly consideration flowing from the defendants to the plaintiffs(2) The parties were bound by the unless order that was made with their consent If the plaintiffs failed to comply with the terms of the unless order they would be able to avoid the default judgment only if the unless order itself was set aside A judgment or order by consent was binding until it was set aside and fresh proceedings must be commenced to set aside a consent order(3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the affidavit of one of their witnesses by the prescribed deadline The application for extension of time of the unless order was withdrawn and thus the unless order remained in effect The plaintiffsrsquo failure to comply with the unless order was due to their own default and not because they were prevented by the defendantsrsquo solicitors(4) Once the default occurred the unless order operated to dismiss the action ldquowithout further orderrdquo There was no question of setting aside the default judgment which was a consequence of the unless order and the

subsequent default Even if the court had the discretion to interfere with the default judgment the plaintiffsrsquo contumacious and contumelious conduct in this case did not justify such exercise in their favourPer curiamOn the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it To hold otherwise would dilute the utility of such consent orders

Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449FactsThe appellantsplaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar The defendantsrsquo counsel made an application by summons-in-chambers to perfect the unless order Plaintiffsrsquo counsel attended the hearing on 8 March 2000 at which the assistant registrar dismissed the plaintiffsrsquo claim Plaintiffsrsquo counsel did not appealLater the plaintiffs engaged new solicitors who made an application that the Registrar set aside the order of 8 March 2000 At the hearing on 14 June 2000 defendantsrsquo counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar The plaintiffsrsquo rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order The assistant registrar after hearing the point on jurisdiction dismissed the plaintiffsrsquo application without hearing the merits The plaintiffs appealedHeld dismissing the appeal(1) The order of 8 March 2000 by the assistant registrar was right Procedurally the assistant registrar in this application could not entertain the plaintiffsrsquo application and could not normally vary another assistant registrarrsquos order as he lacked jurisdiction to do so(2) An unless order generally took effect without further order However the order had to be perfected in the absence of specific rules relating to perfection(3) There were two paths to perfecting such an order The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with If the draft order was approved and it was faired and extracted the unless order was perfected(4) The second was by the party availing itself of the general application procedure of the court to achieve the same end(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach The plaintiffs could not re-litigate the same matter save by way of appeal which they did not file

The Bonito [2001] 3 SLR 32

FactsFollowing a collision between the appellantsrsquo vessel Bonito and the respondentsrsquo vessel Ah Lam II the respondents commenced an admiralty action in rem against the appellants Subsequently the parties reached a settlement under which unless the quantum of damages was agreed there was to be a reference to the registrar for damages to be assessed At a pre-trial conference on 27 March 1997 counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum once the discovery of documents was completed and counsel for the respondents said that the prospects of a settlement were good Nevertheless the assistant registrar made an ldquounless orderrdquo to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997 failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed failing which the action was to stand dismissed with costsSubsequently the parties required more time for the discovery of documents and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages At the hearings on 18 July 1997 and 3 September 1997 orders were made extending the time to 19 October 1997 and 30 November 1997 respectively In allowing the extensions the assistant registrar did not expressly make a default provision in either of the ordersIn March 1999 the appellantsrsquo solicitors informed the respondentsrsquo solicitors that the action had been dismissed In April 2000 the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so In May 2000 the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000 Subsequently

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

16 The Riddick principle is not an absolute principle The court has a discretion to release or modify the undertaking whether express or implied In Crest Homes Lord Oliver of Aylmerton (whose judgment was concurred to by all the other members of the House) saidYour Lordships have been referred to a number of reported cases in which application has been made for the use of documents obtained under Anton Piller orders or on general discovery for the purpose of proceedings other than those in which the order was made Examples were Halcon International Inc v Shell Transport amp Trading Co and Sybron Corp v Barclays Bank plc I do notthink that it would be helpful to review these authorities for they are no more than examples and they illustrate no general principle beyond this that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery

6 determination of issues prioer to discovery

Order for determination of issue etc before discovery (O 24 r 2)2 mdash(1) Where on an application for an order under Rule 1 it appears to the Court that any issue or question in the cause or matter should be determined before any discovery of documents is made by the parties the Court may order that that issue or question be determined first (2) Where in an action begun by writ an order is made under this Rule for the determination of an issue or question Order 25 Rules 2 to 7 shall with the omission of so much of Rule 7 (1) as requires parties to serve a notice specifying the orders and directions which they desire and with any other necessary modifications apply as if the application on which the order was made were a summons for directions

7 pre action discovery- 61 and 63-64 = procedure- purpose ndash 65- privilege ndash 67a- terms of order ndash 66 and 69

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) An originating summons under paragraph (1) or a summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court (b) in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both and that the person against whom the order is sought is likely to have or have had them in his possession custody or power (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order for the discovery of documents before the commencement of proceedings or for the discovery of documents by a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just (6) An order for the discovery of documents may mdash (a) be made conditional on the applicantrsquos giving security for the costs of the person against whom it is made or on such other terms if any as the Court thinks just and (b) require the person against whom the order is made to make an affidavit stating whether the documents specified or described in the order are or at any time have been in his possession custody or power and if not then in his possession custody or power when he parted with them and what has become of them (7) No person shall be compelled by virtue of such an order to produce any document which he could not be compelled to produce mdash

(a) in the case of an originating summons under paragraph (1) if the subsequent proceedings had already been commenced or (b) in the case of a summons under paragraph (2) if he had been served with a subpoena to produce documents1 at the trial (8) For the purpose of Rules 10 and 11 an application for an order under this Rule shall be treated as a cause or matter between the applicant and the person against whom the order is sought (9) Unless the Court orders otherwise where an application is made in accordance with this Rule for an order the person against whom the order is sought shall be entitled to his costs of the application and of complying with any order made thereon on an indemnity basis

- Getting relevant doc before proceedings from Someone protential party Or not unvolved directly in litigation

o Rationale ndash u are entitled to get doc to check whether have case or not - 1048708 O 24 r 6 (1)- 1048708 Procedure is the same whether person from whom discovery sought is a potential party or not

- application by Originating Summons and supporting affidavit - affidavit to state grounds of application material facts pertaining to intended proceedings and

whether person against whom order sought likely to be a party ndash O24 r 6(3)(a) - it is necessary to describe or specify the documents sought ndash O24 r 6(3)(b) describe tpe of class

of documents

- Affidavit must also state the relevance of documents sought and state that person is likely to have documents in possession custody or power

- It is accepted that at this stage the Plaintiff may not know whether he has a viable claim against the Defendant The rule is there to assist the Plaintiff But Plaintiff must set out substance of claim and also state the cause of action to enable a potential Defendant to know the essence of the complaint This is to prevent fishing expeditions

Kuah Kok Kim v Ernst amp Young [1997] 1 SLR 169 CA ndash donrsquot need to specify individual doc Just describe type of class

- Even if the documents are relevant they must meet criteria under O24 r 7 namely whether the discovery is necessary for fair disposal of the proceedings or for the saving of costs

Bayerische Hypo ndash und Vereinsback AG V APB [2004] SGHC 155 ndash fair disposal test Test of relevcancy is bery broad Court esercises some limits

Bank defrauded asking for pre action discovery against APB ndash court said even if doc is relevant must demonstrate a necessity for disclosure Counsel argued that want to narrow issues since going ot sue them anyway Court said that he knew exactly what he was going ot sue for so he shd just go for normnal discovery in any case since going to trial anyway Pre trial discovery only created to prevent unnec trials and writs Not to allow unnec appkications where trial going to proceed anyway Since party certain

8 discovery between parties and how to disclose

- order 24 rule 1- 1048708 List of documents in Form 37 and Affidavit verifying list in Form 38

Form of list and affidavit (O 24 r 3)3 mdash(1) A list of documents made in compliance with an order under Rule 1 must be in Form 37 and must enumerate the documents in a convenient order and as shortly as possible but describing each of them or in the case of bundles of documents of the same nature each bundle sufficiently to enable it to be identified (2) If it is desired to claim that any documents are privileged from production the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege (3) An affidavit made under Rule 1 (1) verifying a list of documents must be in Form 38

- 1048708 List divided into 2 Schedules Schedule 1

documents in possession custody power Part 1 No privilege applies ndash oblig is to serially list each item Cannot be generic in

labeling must list each document cook v smith ndash see case

Part 2 Privileged documents ndash not nec to enumerate doc one by one Schedule 2

documents previously in possession custody power need to give details of when documents last in possession and what has become of them

ndash must state Otherwise opp party can strike out action because no proper discovery

9 Order 24 r3(2) ndash Privilege

- dont inadvertently disclose

The Patraikos 2 [2001] 4 SLR 308- Facts- The plaintiffsrsquo cargo was damaged when the defendantsrsquo vessel (the lsquovesselrsquo) on which it was loaded ran

aground The plaintiffs claimed for damage to the cargo contending amongst others that the defendants breached the Hague Rules (the lsquoRulesrsquo) by engaging a second officer (lsquoOrlandarsquo) who was involved in the grounding of another ship (the lsquoSaronikos IIrsquo) previously

- The plaintiffs were dissatisfied with the defendantsrsquo list of documents for discovery and successfully applied for a further and better list of documents The defendantsrsquo appealed against the following set of documents ordered to be disclosed

(1) Various survey reports regarding the vesselrsquos construction (2) Two faxes from their solicitors (lsquoSRTrsquo) to their managing agents (lsquoDioryxrsquo) (3) ndash (5) Various documents relating to the vesselrsquos seaworthiness and (6) Documents pertaining to the grounding of the Saronikos II

o Held dismissing the appealo (1) Discovery of particular documents would only be ordered if they lsquorelate to matters in question in the

cause or matterrsquo O 24 r 7(3) Rules of Court A document related to the matters in question if it - (a) would be evidence on any issue (b) contained information which might enable the party requiring it to either advance his own case or to damage his adversaryrsquos or (c) might fairly lead him to a train of inquiry which may have either of the consequences in (b) To print it more simply if it threw light on the case the document related to matters in question

o (2) A ship must meet various criteria before it was deemed lsquoseaworthyrsquo Hence item (1) documents constituted evidence as to the vesselrsquos seaworthiness which was a matter in question Furthermore the defendants had implied that they were relevant as they had included them in their list of documents

o (3) The faxes in item (2) would throw light on the true qualifications of the vesselrsquos Chief Officer (lsquoSporidisrsquo) at the time of the grounding SRT and Dioryx had broached this issue and Dioryxrsquos practice of employing officers for their experience and not solely on their paper qualifications Sporidisrsquo qualifications was relevant as it might support the claim that the defendants failed to properly man the vessel as required by art III r 1(b) of the Rules Furthermore the faxes were not privileged as the defendants failed to show that they either reflected their instructions to SRT or gave an indication of the legal advice that SRT would be giving them

o (4) The documents in items (3) (4) and (5) were matters in question as they related to the vesselrsquos seaworthiness Furthermore there was no evidence that the volume of documents under item (4) would be so massive such as to make discovery oppressive

o (5) As Orlanda was on the bridge of the Saronikos II when it ran aground the documents in item (6) were relevant If they indicated that the grounding resulted from Orlandarsquos incompetence or negligence then the plaintiffs were entitled to use the evidence to argue that the defendants in engaging Orlanda despite knowing his past employment history failed to properly man the vessel

o Per Curiamo Apart from the statutory protection afforded by s 128(1) of the Evidence Act (Cap 97 1997 Ed) to

communications between lawyers and their clients communications between (a) the clientrsquos legal advisers and third parties if made for the purpose of pending or contemplated litigation and (b) the client or his agent and third parties if made for the purpose of obtaining information to be submitted to the clientrsquos legal advisers for the purpose of obtaining advice on pending or contemplated litigation were protected as well

- Types of privilege 1048708 Legal professional privilege ndash most usual Stock list ndash lsquoall correspondence governed by legal

proff privilege ie corresp bet lawyer and clientrsquo 1048708 Litigation privilege

1048708 Privilege against self-incrimination 1048708 Public interest privilege ndash O24 r15

Document disclosure of which would be injurious to public interest Saving (O 24 r 15)15 Rules 1 to 14 shall be without prejudice to any rule of law which authorises or requires the withholding of any document on the ground that the disclosure of it would be injurious to the public interest

1048708 Without Prejudice communications- Facts upon which privilege is claimed must be set out in the affidavit Gardner v Irvin [1878] 4 Ex D49- See also O24 r 19 ndash other party who inspected by mistake not allowed to rely on those doc unless cout

grants leave This is where he only inspected the doc itself- Whre included in long klist of doc and handed to other side ndash no specific rules need to take out application

and how this mistake arose

10 types of docs to be disclosed ndash order 24 r12

Wright v Times Business Publications Ltd amp Anor [1991] 3 MLJ 12- These rules are identical with the English rules O 24 rr 7(1) and 8 except that the English O 24 r 8 applies

also to discovery before commencement of proceedings - The principles underlying discovery were enunciated as long ago as 1882 by Brett LJ in The Compagnie

Financiere Et Commerciale Du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 They are as applicable today as they were then under the relevant English Rules of Supreme Court 1875 O XXX1 r 12 At pp 62-63 of the report Brett LJ stated the principle as follows

- The doctrine seems to me to go further than that and to go as far as the principle I am about to lay down It seems to me that every document relates to the matters in question in the action which not only would be evidence upon any issue but also which it is reasonable to suppose contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary I have put the words `either directly or indirectly` because it seems to me a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of inquiry which may have either of these two consequences

- Both sides have relied heavily on this oft quoted passage OCBC to show that the specified class of documents must be relevant to the issue raised by the plea of justification and the particulars relied upon by placing emphasis on the phrase `it is reasonable to suppose` and Norman Wright by suggesting that any document or class of documents which will show or lead to a train of inquiry which will show the truth or falsity of whether OCBC had caused or permitted a breach of confidence or had either deliberately or through ignorance or carelessness broken any promise of confidentiality to the four bankers or were not able to keep confidential matters or information which should be kept confidential would be relevant since these were the real issues raised by the plea of justification and the particulars relied upon and not that he Norman Wright did not check the truth of the assertions he had made as contended by OCBC

- As is to be expected both sides are in serious contention as to what is the real issue raised by OCBC`s plea of justification and the particulars relied upon

- I will now deal with this question Mr Gray submits that the `sting` of the libel of which Norman Wright complains is that he was reckless irresponsible and mischievous because he wrote a letter containing unfounded allegations about OCBC

- hellipIn my view it is crucial to the question of discovery in this appeal to determine the real issue raised by the plea of justification and the particulars relied upon as if Mr Gray is right Norman Wright would not be entitled to discovery of the classes of documents requested for they being all internal documents belonging to OCBC of which he had no knowledge when he wrote his letter to the BT and accordingly not relevant

- The words of the unreserved apology (set out in full under the sub-heading The background) which gave rise to Norman Wright`s complaint are to be found in the second paragraph and read BT is satisfied and accepts that the statements concerning the Overseas-Chinese Banking Corp Ltd in the said letter were and are wholly unfounded (Emphasis added)

- The remainder of that paragraph is an expression of belief and the third paragraph is the apology for the alleged consequence of these words

- hellip Accordingly the classes of documents of which Norman Wright has got discovery by the order of the assistant registrar dated 4 October 1988 have no bearing whatsoever on what I have found to be the true issue in the 1988 proceedings and are therefore totally irrelevant

- An examination of the classes of documents all of which relate to the recruiting procedures adopted by OCBC and their internal procedures both generally and specifically to the four named bankers in question for maintaining confidentiality are not only irrelevant but also unnecessary either for disposing fairly of the cause or matter of for saving costs (O 24 r 8) in view of my finding on the issue raised by OCBC`s plea of justification and the particulars relied upon I find it difficult to imagine how an examination of these classes of documents can lead one to reasonably suppose that they might contain information which may fairly lead to a train of inquiry to damage OCBC`s plea of justification that Norman Wright failed or neglected to check out his assertions before making them The rule is stated in 13 Halsbury`s Laws of England (4th Ed) para 38 as f ollows Relevance must be tested by the pleadings and particulars and when particulars have been served which limit a particular issue the discovery on that issue is limited to the matter raised in the particulars

- The extreme width and lack of specificity of the classes of documents in question led Mr Gray to submit that Norman Wright had little idea of what went on in OCBC and was therefore embarking on a `fishing expedition` in the hope of `trawling` through a volume of unnecessary and irrelevant documents hoping that he would make good his assertions of breach of confidentiality on the part of OCBC either deliberately or through ignorance or carelessness or being unable to keep confidential matters which ought to be kept confidential I cannot but agree

- A further argument advanced by Mr Gray was that to allow Norman Wright to have the discovery he had succeeded in getting was to permit him to circumvent the order of Chao Hick Tin JC in the 1987 proceedings He conceded however that I would have to grapple with this question only in the event that I hold that the classes of documents in question were relevant to the issue of justification in the 1988 proceedings

- Having reached the conclusions I have I do not feel it necessary to grapple with this question or to deal with the numerous authorities that were cited to me on this point However since both counsel spent much time on this point I proceed to make some observations on the arguments

- The substance of Mr Gray`s submission was that even if Norman Wright was entitled to discovery of the particular classes of documents in question discovery should be denied as the irresistible inference was that Norman Wright`s underlying motive was to provide him with a defence in the 1987 proceedings He pointed out that the close similarity between the classes of documents sought in the 1988 proceedings and those sought in the 1987 proceedings bore this out In fact for all practical purposes they are identical He further submitted that it was difficult to believe that Norman Wright would have started the 1988 proceedings at all were it not his desire to achieve a collateral advantage in the 1987 proceedings

- Mr Milmo strongly resented these allegations of an ulterior motive which he submitted was mere conjecture on the part of Mr Gray His submission was that if the particular classes of documents of which discovery was sought in the 1988 proceedings were relevant then it was irrelevant that similar discovery was refused in the 1987 proceedings Furthermore there was an implied undertaking that documents obtained in one case would not be used in another case The court could always protect the party giving discovery by withholding production or inspection to a later date as suggested by Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 471 which I wa s urged to follow Jenkins J said It seems to me however that in the further and better affidavit of documents which I now propose to order it will be open to the defendant if so advised to say with respect to particular documents or a particular class of documents that those documents are for this or that reason especially confidential and that he objects to producing them except on an undertaking by the plaintiff in whatever form the defendant conceives would be adequate for his protection If on that the parties cannot agree as to the form of the undertaking then the matter can come before the court as a question concerning the terms if any which ought to be imposed on the plaintiffs as a condition of having production of those particular documents

- I have already drawn attention to the extreme close connection between the 1987 proceedings and the 1988 proceedings and whilst I would not go so far as to say that Norman Wright`s application in the 1988 proceedings were motivated wholly by an unworthy purpose it would not in my view be desirable in the circumstances of this case to allow discovery of the very classes of documents which were refused in the 1987 proceedings whilst the appeal in those proceedings was still pending even if I had found that they were relevant to the 1988 proceedings In coming to this conclusion I was guided by the words of Lord Oliver of Aylmerton who delivered the main speech in the House of Lords in Crest Homes plc v Marks amp Ors [1987] 2 All ER 1074 at p 1078 It is clearly established and has recently been affirmed in this House that a solicitor who in the course of discovery in an action obtains possession of copies of documents belonging to his client`s adversary gives an implied undertaking to the court not to use that material nor to allow it to be used for any purpose other than the proper conduct of that action on behalf of his client (see Home Office v Harman [1982] 1 All ER 532 [1983] 1 AC 280) It must not be used for any `collateral or ulterior` purpose to use the words of Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 470 approved

and adopted by Lord Diplock in Harman`s case [1982] 1 All ER 532 at p 536 [1983] 1 AC 280 at p 302 Thus for instance to use a document obtained on discovery in one action as the foundation for a claim in a different and wholly unrelated proceeding would be a clear breach of the implied undertaking (see Riddick v Thames Board Mills Ltd [1977]3 All ER 677 [1977] QB 881) It has recently been held by Scott J in Sybron Corp v Barclays Bank plc [1985] Ch 229 and this must in my judgment clearly be right that the implied undertaking applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind But the implied undertais one which is given to the court ordering discovery and it is clear and is not disputed by the appellants that it can in appropriate circumstances be released or modified by the court (Emphasis added)

- I must not of course pre-empt the Court of Appeal in the 1987 proceedings but as that judgment now stands and having regard to the allegations and counter-allegation of malice and what I discern to be the intensity with which these two proceedings are being conducted I would not be comfortable in relying on the implied undertaking which it is conceded exists that some information gleaned from these documents and stored in the mind would not be used u nwittingly in the conduct of the 1987 proceedings

11 limitation to discovery ndash order 24 rule 13

12 Application for specific discovery can be made against party

- If not satisfied with discovery made ndash can take out this order- 1048708 O 24 r 5-Order for discovery of particular documents (O 24 r 5)5 mdash(1) Subject to Rule 7 the Court may at any time on the application of any party to a cause or matter make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is or has at any time been in his possession custody or power and if not then in his possession custody or power when he parted with it and what has become of it (2) An order may be made against a party under this Rule notwithstanding that the party may already have made or been required to make a list of documents or an affidavit under Rule 1 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions (a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and (c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case (4) An order under this Rule shall not be made in any cause or matter in respect of any party before an order under Rule 1 has first been obtained in respect of that party unless in the opinion of the Court the order is necessary or desirable

- 1048708 Procedure SIC supported by affidavit affidavit will state belief of deponent that party from whom discovery is sought has or had

possession custody power of documents sought- 1048708 Expanded test of relevance for further discovery - O24 r 5(3)

document on which party relies will rely document which could adversely affect own case or adversely affect support another partyrsquos case document which could lead to party seeking discovery to a train of enquiry resulting in his

obtaining information which may

ndash adversely affect his own case orndash adversely affect support another partyrsquos casendash =gt very wide test

- test adopted from Compagnie Financiere v Peruvian Guano (1882) 11 QBD 55 where court held that document would be relevant if it is reasonable to suppose that it contains

information which would either directly or indirectly enable the party (requiring the discovery) either to advance his own case or damage the case of his adversary

broadly worded test to ensure that all relevant evidence will be made available to ensure that a dispute can be adjudicated fairly

- greater latitude as compared with O24 r 1 but discovery must be ldquonecessary for disposing fairly of the matter or for saving costsrdquo ndash O 24 r 7 Court should inspect the documents and review facts in issue and also whether documents are confidential ndash Wallace Smith v Deloitte Haskins [1997] 1 WLR 257

ndash discretion fo court Litmus test ndash broad- Court must balance need for discovery with risk of abuse of the discovery process - O 24 r 7- Even if documents are relevant discovery will not be ordered if they are not necessary for the fair disposal

of the dispute ndash Dolling-Baker v Merret [1990] 1 WLR 1205 ndash party had dispute with inusrnac epolicy with

insurance company Party found that insurance comp had similar dispute in arbitration with another part on same type of policy Prob not relevant but even if relevant not nec for disposal fairly or for saving csots in fact aggravating costs So if can show good reason why not relevant can gt them out

- also note the need to prevent ldquofishingrdquo ie seeking discovery of documents without demonstrating their need relevance

Be narrow Msut demonstrate relevancept to paras in pleadings and say that this is directly in issue Must be clear and precise about what you want

Norman Wright amp Ors v OCBC [1992] 2 SLR 710 Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil engineering Pte Ltd [2003] 1 SLR 75

SMS Pte Ltd v Power amp Energy Pte Ltd [1996] 1 SLR 767Facts

The respondent cargo owners SMS sued the appellant carriers Energy for damage caused to their cargo which SMS alleged was due to Energyrsquos breach of contract or breach of duty as bailee or negligence Energyrsquos defence was that (a) there was no evidence of loss or damage when the good were delivered and (b) SMS failed to commence their suit within one year of the date of delivery of the goods At the hearing Energy applied for the defence to be struck out under O 24 r 16 of the Rules of the Supreme Court (RSC) as SMS failed to comply with the order for discovery The application to strike out the defence was made orally and not by summons-in-chambers The trial judge exercising his discretion allowed Energyrsquos oral application and truck out the defence and entered judgment in favour of Energy SMS appealed arguing (a) that the trial judge erred in allowing Energy to make their striking out application orally and (b) the trial judge should have struck out Energyrsquos defence because the order for discovery was not an lsquounlessrsquo order

Heldhellip10 At the hearing of the action on 22 February 1995 the respondents applied under O 24 r 16 for the defence to be struck out and judgment to be entered for the respondents This rule provides that if an order for discovery is not complied with the court may where the party in breach is a defendant strike out the defence and enter judgment for the plaintiff The application was made orally and not by way of a summons-in-chambersThis explanation does inform why no discovery had been provided by the appellants and shows there was no suppression of documents by the appellants However even if they did not have any discoverable documents the appellants could and should have filed a nil list giving such particulars as they could of what documents were once in their possession and then verified the list by affidavit This they did not do and were wrong not to Did the appellantsrsquo failure to file a nil list warrant the defence being struck out and judgment being entered It would be appropriate to do so only if such failure created a real risk that a fair trial of the action would be impossible Whether this was so is dealt with shortly23 Furthermore in deciding whether or not to strike out the defence the learned trial judge does not appear to have applied the test whether failure to file the list of documents would have rendered a fair trial of this action impossible Applying this test and bearing in mind the relevant circumstances enumerated earlier in this courtrsquos judgment the failure of the appellants to file their list of documents did not render a fair trial of this action impossible In any event such a list would have been a nil list and the respondents would have been in no better or worse position than they were before the list was filed If the appellants had filed a nil list verified on affidavit the respondents would have had to accept it unless of course they had evidence to the contrary and subject to

their right to ask for discovery of particular documents as provided by O 24 r 7 As Harman LJ said in John Walker amp Sons Ltd v Henry Ost amp Co [1970] RPC 151 at p 154 ll 45ndash48True it is that one cannot when an affidavit of documents or a list of documents is produced file an affidavit to say lsquoWell I do not believe this man has told the truth or disclosed everything he ought torsquo This affidavit is as they say conclusive24 The defence should not therefore have been struck out Instead the respondents should have been called on to prove their case The appellants had by not filing any affidavits of evidence-in-chief of witnesses elected not to adduce any evidence The trial court would have had to decide the case on the evidence available at the close of the respondentsrsquo case25 The appeal is accordingly allowed and the whole of the judgment dated 22 February 1995 is set aside This matter is sent back to the district court for a new trial Pursuant to the provisions of O 24 r 17 the appellants are ordered to file a list of documents even if it be a nil list within one month from the date of this judgment failing which their defence herein shall be deemed struck out and the respondents shall be at liberty to enter judgment against the appellants

Banque Cantonale Vaudoise v RBG Resources plc and Another [2004] 4 SLR 856- Facts- The first defendant RBG Resources plc (ldquoRBGrdquo) had engaged in transactions with various banks which

had either purchased metals from it or lent money to it on the security of metals Many of the metals were allegedly stored in warehouses operated by or on behalf of the second defendant Fujitrans (Singapore) Pte Ltd (ldquoFujitransrdquo) The plaintiff Banque Cantonale Vaudoise (ldquoBCVrdquo) was one of the banks which had transacted with RBG It had a claim against Fujitrans in respect of various groups of metals one of which was listed in Schedule 3 of its Re-Amended Statement of Claim (ldquothe Schedule 3 claimrdquo)

- An assistant registrar granted BCV summary judgment against Fujitrans Fujitrans appealed Before the appeal was heard Fujitrans filed an application for discovery of various categories of documents from BCV Consequently the appeal against summary judgment was held in abeyance An assistant registrar dismissed Fujitransrsquo discovery application save for one category of documents Fujitrans appealed against that decision as it wanted discovery and production of the remaining seven categories of documents

- Fujitransrsquo position was that it had proceeded with the discovery application first in order to show the court with certainty the information and documents which would be referred to by its banking expert Howard Palmer (ldquoPalmerrdquo) in his intended affidavit for the appeal against summary judgment Without knowing the final outcome of the discovery application and the documents to be obtained Fujitransrsquo application for leave would be speculative

- Held dismissing the appeal- Fujitransrsquo discovery application to the assistant registrar and its appeal against that decision were premature

By the time Fujitrans filed its discovery application summary judgment had already been granted to BCV for the Schedule 3 claim Accordingly the office of assistant registrar was functus officio as regards any subsequent discovery application save for claims which were not the subject of the summary judgment Therefore the discovery application could not and should not have been made to the assistant registrar at [12] [15] and [17]

- The discovery application could have been made to a judge in chambers only in the context of the pending summary judgment appeal It should have been made by way of a preliminary application in the appeal proper whereupon the question as to whether the appellant should be granted leave to adduce further evidence would have been considered first Alternatively Fujitrans could have filed the applications for discovery and leave to adduce further evidence contemporaneously and asked that they be heard together at [18] and [20]

- If it was speculative to seek leave without having discovery first it was even more speculative to seek discovery without obtaining leave first The discovery application should not have been made first as a discovery order in favour of Fujitrans would or might affect the outcome of the leave application It was for the judge hearing the leave application to decide whether to grant leave or not and if so leave could be granted subject to a successful discovery application at [22]

- As for the substantive discovery appeal before this court the main issue was the relevancy of the documents for which discovery was sought The application for discovery of the remaining seven categories of documents was in fact a fishing expedition It was obvious that Fujitransrsquo discovery application was an attempt to support its appeal against summary judgment The application was not for saving costs and was neither desirable nor necessary for disposing fairly of the cause or matter at [36] [54] and [55]

- [Observation Since Fujitrans would be appealing against this courtrsquos decision in the discovery appeal and it had not filed its leave application it should apply to a judge in chambers for leave to adduce evidence in respect of the summary judgment appeal and to include an application for leave to adduce evidence from

any successful application for discovery If the application was to be unsuccessful then Fujitrans could appeal against that decision to the Court of Appeal and that appeal should be heard together with the appeal against this courtrsquos decision Otherwise the Court of Appeal would have to give a decision which was not in the correct sequence at [24]

- Alternatively BCV could apply to a judge in chambers for a declaration that Fujitrans should not be permitted to adduce further evidence so that any dissatisfied party could thereafter appeal to the Court of Appeal which could then deal with that appeal and the appeal against this courtrsquos decision in the correct sequence at [25]]

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710Held dismissing both appeals(1) In their defence of fair comment in the 1987 action the first and third defendants were not able to particularize the steps OCBC failed to take to ensure that confidential matters were not publicly disclosed and sought to interrogate the bank on what steps the bank had or had not taken This was not permissible The judicial commissioner was right in holding that their interrogatories were fishing(2) The categories of documents the defendants sought in their application for a further and better list of documents in the 1987 action were extremely wide and virtually none of them bore any relevance to the issues raised by the defences The aim of this application was no different from that of the application for leave to serve the interrogatories It was an attempt to mount a comprehensive discovery with the hope of finding something useful for their case(3) The sting of the libel in the 1988 action was the imputation of recklessness irresponsibility and mischievousness on Wrightrsquos part in writing the letter to the newspaper The material issue turned on the state of Wrightrsquos mind at the time he wrote the letter and not whether what he wrote was true or false The classes of documents in respect of which Wright sought discovery had no bearing on that issue They were substantially internal documents of OCBC of which he had absolutely no knowledge They were also not necessary for disposing fairly of the cause or matter or for saving costs The extreme width and lack of specificity of the classes of documents sought also indicated that Wright was lsquofishingrsquo for material to make good his assertions of OCBCrsquos breach of confidentiality(4) The two actions were inextricably intertwined and arose out of the same set of facts To allow Wright discovery of these categories of documents would in effect enable Wright to circumvent Chao Jrsquos order in the 1987 action That was not permissible(5) The application for further and better particulars of the defence in the 1988 action was substantially framed in the form of interrogatories and covered the same ground as the application for discovery Wright was accordingly not entitled to the particulars sought(6) Both the appeals were against the exercise of judicial discretion in relation to interlocutory issues In the absence of clear error of law or principle the appellate court should not interfere No such error of law or principle had been made out

o Can blank out parts of docs where private and confidential ndash there is law to support this Court to make sure that no irrelevcant parts Gene capital v bankerrsquos trust

First conseq therefore =gt other party can apply for discovery

13 Other consequences of failure to comply with discovery order

1048708 O 24 r 16(a) Action dismissed or defence struck out and judgment entered - O 24 r 16(1)(b) Committal of party failing to comply - O 24 r 16(2)(c) Committal of solicitor who fails to notify client of the order for discovery - O 24 r 16(4) - distinct from other

duties of solicitor in relation to discovery(d) inability to rely on undisclosed documents save with leave - O 24 r 16(5)

Main Principles ndash analysis applies throughout civ pro course any type of order ndash these apply- bull Court will usually make an lsquounless orderrsquo in the first instance Ie court will say since you havenrsquot

complied give you x time failing which your claim or defence is struck out- As person who applied for unless order ndash most pple then apply to court for order that action is struck off

o Silly because this allows pther party to plead oral extension of time- bull Disobedience of an unless order is likely to amount to contumelious behaviour (ie contempt)

- bull In order to avoid the dire consequences onus is on defaulter to show that o 1 there was no intention to ignore the peremptory order and o 2 that the failure to obey was due to extraneous circumstances Syed Mohamed Abdul Muthaliff v

Arjan Bhisham Chotrani [1999] 1 SLR 750o but court also said not off the hook necessarily ndash in face of neg competence or sheer indolence Ie

at heart of it need to show that had made positive efforts Must be sufficient efforts (prej to other side ndash secondary stage)

- bull Once an unless order is breached the opposing party can either apply for a final order (see above) or write to the Registry with a suitable draft order (this is correct procedure) Changhe International Investments Pte Ltd v BIL [2004] 4 SLR 449

- bull An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a contract Wiltopps (Asia) Ltd v Drew amp Napier [2000] 3 SLR 244

o applied for extension of time unless order obtained kike consent operates ilke a contract ndash cannot set it aside Can only set aside by filing fresh application pleading undue influence etc most have fresh proceedings so never consent to an unless order

Wiltopps (Asia) Ltd v Drew amp Napier (sued as a firm) and Another [2000] 3 SLR 244FactsThe present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their conduct of the proceedings After the writ of summons was filed in May 1993 there was considerable procrastination by the plaintiffs in proceeding with the action In October 1997 the court ordered affidavits of evidence-in-chief to be filed and exchanged within two months The order listed the witnesses the plaintiffs intended to call After various applications for extension of time for filing the affidavits the defendantsrsquo solicitors set a deadline by which the exchange of affidavits was to take place There was no exchange by the plaintiffs by the deadline and the defendantsrsquo solicitors applied for an order that unless the plaintiffs filed and served on the defendants the affidavits of evidence-in-chief of their witnesses within three days the plaintiffsrsquo action would be dismissed At the hearing of the application the plaintiffsrsquo solicitors offered to accept the unless order provided that they were given seven days instead of three This was agreed to by the defendantsrsquo solicitors and a consent order was made which required the plaintiffs to make the necessary exchange within seven days and in default the plaintiffsrsquo action would be dismissed with costs without further orderThe plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date The plaintiffsrsquo solicitors then applied for an extension of time to comply with the unless order The application was however later withdrawn at the hearing Subsequently the defendantsrsquo solicitors applied for and obtained a default judgment dismissing the plaintiffsrsquo action on the basis of their non-compliance with the unless order The plaintiffsrsquo solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar The plaintiffs appealed against the decisionHeld dismissing the appeal(1) The words ldquoby consentrdquo in the unless order could either evidence a real contract between the parties or could evidence an order made without obligation by the parties In the present case the words in the unless order gave effect to the contract between the parties The order had been made on the basis of the plaintiffs solicitorsrsquo offer to consent if they were given seven days instead of three and which offer was accepted by the defendantsrsquo solicitors There was clearly consideration flowing from the defendants to the plaintiffs(2) The parties were bound by the unless order that was made with their consent If the plaintiffs failed to comply with the terms of the unless order they would be able to avoid the default judgment only if the unless order itself was set aside A judgment or order by consent was binding until it was set aside and fresh proceedings must be commenced to set aside a consent order(3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the affidavit of one of their witnesses by the prescribed deadline The application for extension of time of the unless order was withdrawn and thus the unless order remained in effect The plaintiffsrsquo failure to comply with the unless order was due to their own default and not because they were prevented by the defendantsrsquo solicitors(4) Once the default occurred the unless order operated to dismiss the action ldquowithout further orderrdquo There was no question of setting aside the default judgment which was a consequence of the unless order and the

subsequent default Even if the court had the discretion to interfere with the default judgment the plaintiffsrsquo contumacious and contumelious conduct in this case did not justify such exercise in their favourPer curiamOn the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it To hold otherwise would dilute the utility of such consent orders

Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449FactsThe appellantsplaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar The defendantsrsquo counsel made an application by summons-in-chambers to perfect the unless order Plaintiffsrsquo counsel attended the hearing on 8 March 2000 at which the assistant registrar dismissed the plaintiffsrsquo claim Plaintiffsrsquo counsel did not appealLater the plaintiffs engaged new solicitors who made an application that the Registrar set aside the order of 8 March 2000 At the hearing on 14 June 2000 defendantsrsquo counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar The plaintiffsrsquo rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order The assistant registrar after hearing the point on jurisdiction dismissed the plaintiffsrsquo application without hearing the merits The plaintiffs appealedHeld dismissing the appeal(1) The order of 8 March 2000 by the assistant registrar was right Procedurally the assistant registrar in this application could not entertain the plaintiffsrsquo application and could not normally vary another assistant registrarrsquos order as he lacked jurisdiction to do so(2) An unless order generally took effect without further order However the order had to be perfected in the absence of specific rules relating to perfection(3) There were two paths to perfecting such an order The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with If the draft order was approved and it was faired and extracted the unless order was perfected(4) The second was by the party availing itself of the general application procedure of the court to achieve the same end(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach The plaintiffs could not re-litigate the same matter save by way of appeal which they did not file

The Bonito [2001] 3 SLR 32

FactsFollowing a collision between the appellantsrsquo vessel Bonito and the respondentsrsquo vessel Ah Lam II the respondents commenced an admiralty action in rem against the appellants Subsequently the parties reached a settlement under which unless the quantum of damages was agreed there was to be a reference to the registrar for damages to be assessed At a pre-trial conference on 27 March 1997 counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum once the discovery of documents was completed and counsel for the respondents said that the prospects of a settlement were good Nevertheless the assistant registrar made an ldquounless orderrdquo to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997 failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed failing which the action was to stand dismissed with costsSubsequently the parties required more time for the discovery of documents and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages At the hearings on 18 July 1997 and 3 September 1997 orders were made extending the time to 19 October 1997 and 30 November 1997 respectively In allowing the extensions the assistant registrar did not expressly make a default provision in either of the ordersIn March 1999 the appellantsrsquo solicitors informed the respondentsrsquo solicitors that the action had been dismissed In April 2000 the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so In May 2000 the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000 Subsequently

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

(a) in the case of an originating summons under paragraph (1) if the subsequent proceedings had already been commenced or (b) in the case of a summons under paragraph (2) if he had been served with a subpoena to produce documents1 at the trial (8) For the purpose of Rules 10 and 11 an application for an order under this Rule shall be treated as a cause or matter between the applicant and the person against whom the order is sought (9) Unless the Court orders otherwise where an application is made in accordance with this Rule for an order the person against whom the order is sought shall be entitled to his costs of the application and of complying with any order made thereon on an indemnity basis

- Getting relevant doc before proceedings from Someone protential party Or not unvolved directly in litigation

o Rationale ndash u are entitled to get doc to check whether have case or not - 1048708 O 24 r 6 (1)- 1048708 Procedure is the same whether person from whom discovery sought is a potential party or not

- application by Originating Summons and supporting affidavit - affidavit to state grounds of application material facts pertaining to intended proceedings and

whether person against whom order sought likely to be a party ndash O24 r 6(3)(a) - it is necessary to describe or specify the documents sought ndash O24 r 6(3)(b) describe tpe of class

of documents

- Affidavit must also state the relevance of documents sought and state that person is likely to have documents in possession custody or power

- It is accepted that at this stage the Plaintiff may not know whether he has a viable claim against the Defendant The rule is there to assist the Plaintiff But Plaintiff must set out substance of claim and also state the cause of action to enable a potential Defendant to know the essence of the complaint This is to prevent fishing expeditions

Kuah Kok Kim v Ernst amp Young [1997] 1 SLR 169 CA ndash donrsquot need to specify individual doc Just describe type of class

- Even if the documents are relevant they must meet criteria under O24 r 7 namely whether the discovery is necessary for fair disposal of the proceedings or for the saving of costs

Bayerische Hypo ndash und Vereinsback AG V APB [2004] SGHC 155 ndash fair disposal test Test of relevcancy is bery broad Court esercises some limits

Bank defrauded asking for pre action discovery against APB ndash court said even if doc is relevant must demonstrate a necessity for disclosure Counsel argued that want to narrow issues since going ot sue them anyway Court said that he knew exactly what he was going ot sue for so he shd just go for normnal discovery in any case since going to trial anyway Pre trial discovery only created to prevent unnec trials and writs Not to allow unnec appkications where trial going to proceed anyway Since party certain

8 discovery between parties and how to disclose

- order 24 rule 1- 1048708 List of documents in Form 37 and Affidavit verifying list in Form 38

Form of list and affidavit (O 24 r 3)3 mdash(1) A list of documents made in compliance with an order under Rule 1 must be in Form 37 and must enumerate the documents in a convenient order and as shortly as possible but describing each of them or in the case of bundles of documents of the same nature each bundle sufficiently to enable it to be identified (2) If it is desired to claim that any documents are privileged from production the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege (3) An affidavit made under Rule 1 (1) verifying a list of documents must be in Form 38

- 1048708 List divided into 2 Schedules Schedule 1

documents in possession custody power Part 1 No privilege applies ndash oblig is to serially list each item Cannot be generic in

labeling must list each document cook v smith ndash see case

Part 2 Privileged documents ndash not nec to enumerate doc one by one Schedule 2

documents previously in possession custody power need to give details of when documents last in possession and what has become of them

ndash must state Otherwise opp party can strike out action because no proper discovery

9 Order 24 r3(2) ndash Privilege

- dont inadvertently disclose

The Patraikos 2 [2001] 4 SLR 308- Facts- The plaintiffsrsquo cargo was damaged when the defendantsrsquo vessel (the lsquovesselrsquo) on which it was loaded ran

aground The plaintiffs claimed for damage to the cargo contending amongst others that the defendants breached the Hague Rules (the lsquoRulesrsquo) by engaging a second officer (lsquoOrlandarsquo) who was involved in the grounding of another ship (the lsquoSaronikos IIrsquo) previously

- The plaintiffs were dissatisfied with the defendantsrsquo list of documents for discovery and successfully applied for a further and better list of documents The defendantsrsquo appealed against the following set of documents ordered to be disclosed

(1) Various survey reports regarding the vesselrsquos construction (2) Two faxes from their solicitors (lsquoSRTrsquo) to their managing agents (lsquoDioryxrsquo) (3) ndash (5) Various documents relating to the vesselrsquos seaworthiness and (6) Documents pertaining to the grounding of the Saronikos II

o Held dismissing the appealo (1) Discovery of particular documents would only be ordered if they lsquorelate to matters in question in the

cause or matterrsquo O 24 r 7(3) Rules of Court A document related to the matters in question if it - (a) would be evidence on any issue (b) contained information which might enable the party requiring it to either advance his own case or to damage his adversaryrsquos or (c) might fairly lead him to a train of inquiry which may have either of the consequences in (b) To print it more simply if it threw light on the case the document related to matters in question

o (2) A ship must meet various criteria before it was deemed lsquoseaworthyrsquo Hence item (1) documents constituted evidence as to the vesselrsquos seaworthiness which was a matter in question Furthermore the defendants had implied that they were relevant as they had included them in their list of documents

o (3) The faxes in item (2) would throw light on the true qualifications of the vesselrsquos Chief Officer (lsquoSporidisrsquo) at the time of the grounding SRT and Dioryx had broached this issue and Dioryxrsquos practice of employing officers for their experience and not solely on their paper qualifications Sporidisrsquo qualifications was relevant as it might support the claim that the defendants failed to properly man the vessel as required by art III r 1(b) of the Rules Furthermore the faxes were not privileged as the defendants failed to show that they either reflected their instructions to SRT or gave an indication of the legal advice that SRT would be giving them

o (4) The documents in items (3) (4) and (5) were matters in question as they related to the vesselrsquos seaworthiness Furthermore there was no evidence that the volume of documents under item (4) would be so massive such as to make discovery oppressive

o (5) As Orlanda was on the bridge of the Saronikos II when it ran aground the documents in item (6) were relevant If they indicated that the grounding resulted from Orlandarsquos incompetence or negligence then the plaintiffs were entitled to use the evidence to argue that the defendants in engaging Orlanda despite knowing his past employment history failed to properly man the vessel

o Per Curiamo Apart from the statutory protection afforded by s 128(1) of the Evidence Act (Cap 97 1997 Ed) to

communications between lawyers and their clients communications between (a) the clientrsquos legal advisers and third parties if made for the purpose of pending or contemplated litigation and (b) the client or his agent and third parties if made for the purpose of obtaining information to be submitted to the clientrsquos legal advisers for the purpose of obtaining advice on pending or contemplated litigation were protected as well

- Types of privilege 1048708 Legal professional privilege ndash most usual Stock list ndash lsquoall correspondence governed by legal

proff privilege ie corresp bet lawyer and clientrsquo 1048708 Litigation privilege

1048708 Privilege against self-incrimination 1048708 Public interest privilege ndash O24 r15

Document disclosure of which would be injurious to public interest Saving (O 24 r 15)15 Rules 1 to 14 shall be without prejudice to any rule of law which authorises or requires the withholding of any document on the ground that the disclosure of it would be injurious to the public interest

1048708 Without Prejudice communications- Facts upon which privilege is claimed must be set out in the affidavit Gardner v Irvin [1878] 4 Ex D49- See also O24 r 19 ndash other party who inspected by mistake not allowed to rely on those doc unless cout

grants leave This is where he only inspected the doc itself- Whre included in long klist of doc and handed to other side ndash no specific rules need to take out application

and how this mistake arose

10 types of docs to be disclosed ndash order 24 r12

Wright v Times Business Publications Ltd amp Anor [1991] 3 MLJ 12- These rules are identical with the English rules O 24 rr 7(1) and 8 except that the English O 24 r 8 applies

also to discovery before commencement of proceedings - The principles underlying discovery were enunciated as long ago as 1882 by Brett LJ in The Compagnie

Financiere Et Commerciale Du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 They are as applicable today as they were then under the relevant English Rules of Supreme Court 1875 O XXX1 r 12 At pp 62-63 of the report Brett LJ stated the principle as follows

- The doctrine seems to me to go further than that and to go as far as the principle I am about to lay down It seems to me that every document relates to the matters in question in the action which not only would be evidence upon any issue but also which it is reasonable to suppose contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary I have put the words `either directly or indirectly` because it seems to me a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of inquiry which may have either of these two consequences

- Both sides have relied heavily on this oft quoted passage OCBC to show that the specified class of documents must be relevant to the issue raised by the plea of justification and the particulars relied upon by placing emphasis on the phrase `it is reasonable to suppose` and Norman Wright by suggesting that any document or class of documents which will show or lead to a train of inquiry which will show the truth or falsity of whether OCBC had caused or permitted a breach of confidence or had either deliberately or through ignorance or carelessness broken any promise of confidentiality to the four bankers or were not able to keep confidential matters or information which should be kept confidential would be relevant since these were the real issues raised by the plea of justification and the particulars relied upon and not that he Norman Wright did not check the truth of the assertions he had made as contended by OCBC

- As is to be expected both sides are in serious contention as to what is the real issue raised by OCBC`s plea of justification and the particulars relied upon

- I will now deal with this question Mr Gray submits that the `sting` of the libel of which Norman Wright complains is that he was reckless irresponsible and mischievous because he wrote a letter containing unfounded allegations about OCBC

- hellipIn my view it is crucial to the question of discovery in this appeal to determine the real issue raised by the plea of justification and the particulars relied upon as if Mr Gray is right Norman Wright would not be entitled to discovery of the classes of documents requested for they being all internal documents belonging to OCBC of which he had no knowledge when he wrote his letter to the BT and accordingly not relevant

- The words of the unreserved apology (set out in full under the sub-heading The background) which gave rise to Norman Wright`s complaint are to be found in the second paragraph and read BT is satisfied and accepts that the statements concerning the Overseas-Chinese Banking Corp Ltd in the said letter were and are wholly unfounded (Emphasis added)

- The remainder of that paragraph is an expression of belief and the third paragraph is the apology for the alleged consequence of these words

- hellip Accordingly the classes of documents of which Norman Wright has got discovery by the order of the assistant registrar dated 4 October 1988 have no bearing whatsoever on what I have found to be the true issue in the 1988 proceedings and are therefore totally irrelevant

- An examination of the classes of documents all of which relate to the recruiting procedures adopted by OCBC and their internal procedures both generally and specifically to the four named bankers in question for maintaining confidentiality are not only irrelevant but also unnecessary either for disposing fairly of the cause or matter of for saving costs (O 24 r 8) in view of my finding on the issue raised by OCBC`s plea of justification and the particulars relied upon I find it difficult to imagine how an examination of these classes of documents can lead one to reasonably suppose that they might contain information which may fairly lead to a train of inquiry to damage OCBC`s plea of justification that Norman Wright failed or neglected to check out his assertions before making them The rule is stated in 13 Halsbury`s Laws of England (4th Ed) para 38 as f ollows Relevance must be tested by the pleadings and particulars and when particulars have been served which limit a particular issue the discovery on that issue is limited to the matter raised in the particulars

- The extreme width and lack of specificity of the classes of documents in question led Mr Gray to submit that Norman Wright had little idea of what went on in OCBC and was therefore embarking on a `fishing expedition` in the hope of `trawling` through a volume of unnecessary and irrelevant documents hoping that he would make good his assertions of breach of confidentiality on the part of OCBC either deliberately or through ignorance or carelessness or being unable to keep confidential matters which ought to be kept confidential I cannot but agree

- A further argument advanced by Mr Gray was that to allow Norman Wright to have the discovery he had succeeded in getting was to permit him to circumvent the order of Chao Hick Tin JC in the 1987 proceedings He conceded however that I would have to grapple with this question only in the event that I hold that the classes of documents in question were relevant to the issue of justification in the 1988 proceedings

- Having reached the conclusions I have I do not feel it necessary to grapple with this question or to deal with the numerous authorities that were cited to me on this point However since both counsel spent much time on this point I proceed to make some observations on the arguments

- The substance of Mr Gray`s submission was that even if Norman Wright was entitled to discovery of the particular classes of documents in question discovery should be denied as the irresistible inference was that Norman Wright`s underlying motive was to provide him with a defence in the 1987 proceedings He pointed out that the close similarity between the classes of documents sought in the 1988 proceedings and those sought in the 1987 proceedings bore this out In fact for all practical purposes they are identical He further submitted that it was difficult to believe that Norman Wright would have started the 1988 proceedings at all were it not his desire to achieve a collateral advantage in the 1987 proceedings

- Mr Milmo strongly resented these allegations of an ulterior motive which he submitted was mere conjecture on the part of Mr Gray His submission was that if the particular classes of documents of which discovery was sought in the 1988 proceedings were relevant then it was irrelevant that similar discovery was refused in the 1987 proceedings Furthermore there was an implied undertaking that documents obtained in one case would not be used in another case The court could always protect the party giving discovery by withholding production or inspection to a later date as suggested by Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 471 which I wa s urged to follow Jenkins J said It seems to me however that in the further and better affidavit of documents which I now propose to order it will be open to the defendant if so advised to say with respect to particular documents or a particular class of documents that those documents are for this or that reason especially confidential and that he objects to producing them except on an undertaking by the plaintiff in whatever form the defendant conceives would be adequate for his protection If on that the parties cannot agree as to the form of the undertaking then the matter can come before the court as a question concerning the terms if any which ought to be imposed on the plaintiffs as a condition of having production of those particular documents

- I have already drawn attention to the extreme close connection between the 1987 proceedings and the 1988 proceedings and whilst I would not go so far as to say that Norman Wright`s application in the 1988 proceedings were motivated wholly by an unworthy purpose it would not in my view be desirable in the circumstances of this case to allow discovery of the very classes of documents which were refused in the 1987 proceedings whilst the appeal in those proceedings was still pending even if I had found that they were relevant to the 1988 proceedings In coming to this conclusion I was guided by the words of Lord Oliver of Aylmerton who delivered the main speech in the House of Lords in Crest Homes plc v Marks amp Ors [1987] 2 All ER 1074 at p 1078 It is clearly established and has recently been affirmed in this House that a solicitor who in the course of discovery in an action obtains possession of copies of documents belonging to his client`s adversary gives an implied undertaking to the court not to use that material nor to allow it to be used for any purpose other than the proper conduct of that action on behalf of his client (see Home Office v Harman [1982] 1 All ER 532 [1983] 1 AC 280) It must not be used for any `collateral or ulterior` purpose to use the words of Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 470 approved

and adopted by Lord Diplock in Harman`s case [1982] 1 All ER 532 at p 536 [1983] 1 AC 280 at p 302 Thus for instance to use a document obtained on discovery in one action as the foundation for a claim in a different and wholly unrelated proceeding would be a clear breach of the implied undertaking (see Riddick v Thames Board Mills Ltd [1977]3 All ER 677 [1977] QB 881) It has recently been held by Scott J in Sybron Corp v Barclays Bank plc [1985] Ch 229 and this must in my judgment clearly be right that the implied undertaking applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind But the implied undertais one which is given to the court ordering discovery and it is clear and is not disputed by the appellants that it can in appropriate circumstances be released or modified by the court (Emphasis added)

- I must not of course pre-empt the Court of Appeal in the 1987 proceedings but as that judgment now stands and having regard to the allegations and counter-allegation of malice and what I discern to be the intensity with which these two proceedings are being conducted I would not be comfortable in relying on the implied undertaking which it is conceded exists that some information gleaned from these documents and stored in the mind would not be used u nwittingly in the conduct of the 1987 proceedings

11 limitation to discovery ndash order 24 rule 13

12 Application for specific discovery can be made against party

- If not satisfied with discovery made ndash can take out this order- 1048708 O 24 r 5-Order for discovery of particular documents (O 24 r 5)5 mdash(1) Subject to Rule 7 the Court may at any time on the application of any party to a cause or matter make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is or has at any time been in his possession custody or power and if not then in his possession custody or power when he parted with it and what has become of it (2) An order may be made against a party under this Rule notwithstanding that the party may already have made or been required to make a list of documents or an affidavit under Rule 1 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions (a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and (c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case (4) An order under this Rule shall not be made in any cause or matter in respect of any party before an order under Rule 1 has first been obtained in respect of that party unless in the opinion of the Court the order is necessary or desirable

- 1048708 Procedure SIC supported by affidavit affidavit will state belief of deponent that party from whom discovery is sought has or had

possession custody power of documents sought- 1048708 Expanded test of relevance for further discovery - O24 r 5(3)

document on which party relies will rely document which could adversely affect own case or adversely affect support another partyrsquos case document which could lead to party seeking discovery to a train of enquiry resulting in his

obtaining information which may

ndash adversely affect his own case orndash adversely affect support another partyrsquos casendash =gt very wide test

- test adopted from Compagnie Financiere v Peruvian Guano (1882) 11 QBD 55 where court held that document would be relevant if it is reasonable to suppose that it contains

information which would either directly or indirectly enable the party (requiring the discovery) either to advance his own case or damage the case of his adversary

broadly worded test to ensure that all relevant evidence will be made available to ensure that a dispute can be adjudicated fairly

- greater latitude as compared with O24 r 1 but discovery must be ldquonecessary for disposing fairly of the matter or for saving costsrdquo ndash O 24 r 7 Court should inspect the documents and review facts in issue and also whether documents are confidential ndash Wallace Smith v Deloitte Haskins [1997] 1 WLR 257

ndash discretion fo court Litmus test ndash broad- Court must balance need for discovery with risk of abuse of the discovery process - O 24 r 7- Even if documents are relevant discovery will not be ordered if they are not necessary for the fair disposal

of the dispute ndash Dolling-Baker v Merret [1990] 1 WLR 1205 ndash party had dispute with inusrnac epolicy with

insurance company Party found that insurance comp had similar dispute in arbitration with another part on same type of policy Prob not relevant but even if relevant not nec for disposal fairly or for saving csots in fact aggravating costs So if can show good reason why not relevant can gt them out

- also note the need to prevent ldquofishingrdquo ie seeking discovery of documents without demonstrating their need relevance

Be narrow Msut demonstrate relevancept to paras in pleadings and say that this is directly in issue Must be clear and precise about what you want

Norman Wright amp Ors v OCBC [1992] 2 SLR 710 Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil engineering Pte Ltd [2003] 1 SLR 75

SMS Pte Ltd v Power amp Energy Pte Ltd [1996] 1 SLR 767Facts

The respondent cargo owners SMS sued the appellant carriers Energy for damage caused to their cargo which SMS alleged was due to Energyrsquos breach of contract or breach of duty as bailee or negligence Energyrsquos defence was that (a) there was no evidence of loss or damage when the good were delivered and (b) SMS failed to commence their suit within one year of the date of delivery of the goods At the hearing Energy applied for the defence to be struck out under O 24 r 16 of the Rules of the Supreme Court (RSC) as SMS failed to comply with the order for discovery The application to strike out the defence was made orally and not by summons-in-chambers The trial judge exercising his discretion allowed Energyrsquos oral application and truck out the defence and entered judgment in favour of Energy SMS appealed arguing (a) that the trial judge erred in allowing Energy to make their striking out application orally and (b) the trial judge should have struck out Energyrsquos defence because the order for discovery was not an lsquounlessrsquo order

Heldhellip10 At the hearing of the action on 22 February 1995 the respondents applied under O 24 r 16 for the defence to be struck out and judgment to be entered for the respondents This rule provides that if an order for discovery is not complied with the court may where the party in breach is a defendant strike out the defence and enter judgment for the plaintiff The application was made orally and not by way of a summons-in-chambersThis explanation does inform why no discovery had been provided by the appellants and shows there was no suppression of documents by the appellants However even if they did not have any discoverable documents the appellants could and should have filed a nil list giving such particulars as they could of what documents were once in their possession and then verified the list by affidavit This they did not do and were wrong not to Did the appellantsrsquo failure to file a nil list warrant the defence being struck out and judgment being entered It would be appropriate to do so only if such failure created a real risk that a fair trial of the action would be impossible Whether this was so is dealt with shortly23 Furthermore in deciding whether or not to strike out the defence the learned trial judge does not appear to have applied the test whether failure to file the list of documents would have rendered a fair trial of this action impossible Applying this test and bearing in mind the relevant circumstances enumerated earlier in this courtrsquos judgment the failure of the appellants to file their list of documents did not render a fair trial of this action impossible In any event such a list would have been a nil list and the respondents would have been in no better or worse position than they were before the list was filed If the appellants had filed a nil list verified on affidavit the respondents would have had to accept it unless of course they had evidence to the contrary and subject to

their right to ask for discovery of particular documents as provided by O 24 r 7 As Harman LJ said in John Walker amp Sons Ltd v Henry Ost amp Co [1970] RPC 151 at p 154 ll 45ndash48True it is that one cannot when an affidavit of documents or a list of documents is produced file an affidavit to say lsquoWell I do not believe this man has told the truth or disclosed everything he ought torsquo This affidavit is as they say conclusive24 The defence should not therefore have been struck out Instead the respondents should have been called on to prove their case The appellants had by not filing any affidavits of evidence-in-chief of witnesses elected not to adduce any evidence The trial court would have had to decide the case on the evidence available at the close of the respondentsrsquo case25 The appeal is accordingly allowed and the whole of the judgment dated 22 February 1995 is set aside This matter is sent back to the district court for a new trial Pursuant to the provisions of O 24 r 17 the appellants are ordered to file a list of documents even if it be a nil list within one month from the date of this judgment failing which their defence herein shall be deemed struck out and the respondents shall be at liberty to enter judgment against the appellants

Banque Cantonale Vaudoise v RBG Resources plc and Another [2004] 4 SLR 856- Facts- The first defendant RBG Resources plc (ldquoRBGrdquo) had engaged in transactions with various banks which

had either purchased metals from it or lent money to it on the security of metals Many of the metals were allegedly stored in warehouses operated by or on behalf of the second defendant Fujitrans (Singapore) Pte Ltd (ldquoFujitransrdquo) The plaintiff Banque Cantonale Vaudoise (ldquoBCVrdquo) was one of the banks which had transacted with RBG It had a claim against Fujitrans in respect of various groups of metals one of which was listed in Schedule 3 of its Re-Amended Statement of Claim (ldquothe Schedule 3 claimrdquo)

- An assistant registrar granted BCV summary judgment against Fujitrans Fujitrans appealed Before the appeal was heard Fujitrans filed an application for discovery of various categories of documents from BCV Consequently the appeal against summary judgment was held in abeyance An assistant registrar dismissed Fujitransrsquo discovery application save for one category of documents Fujitrans appealed against that decision as it wanted discovery and production of the remaining seven categories of documents

- Fujitransrsquo position was that it had proceeded with the discovery application first in order to show the court with certainty the information and documents which would be referred to by its banking expert Howard Palmer (ldquoPalmerrdquo) in his intended affidavit for the appeal against summary judgment Without knowing the final outcome of the discovery application and the documents to be obtained Fujitransrsquo application for leave would be speculative

- Held dismissing the appeal- Fujitransrsquo discovery application to the assistant registrar and its appeal against that decision were premature

By the time Fujitrans filed its discovery application summary judgment had already been granted to BCV for the Schedule 3 claim Accordingly the office of assistant registrar was functus officio as regards any subsequent discovery application save for claims which were not the subject of the summary judgment Therefore the discovery application could not and should not have been made to the assistant registrar at [12] [15] and [17]

- The discovery application could have been made to a judge in chambers only in the context of the pending summary judgment appeal It should have been made by way of a preliminary application in the appeal proper whereupon the question as to whether the appellant should be granted leave to adduce further evidence would have been considered first Alternatively Fujitrans could have filed the applications for discovery and leave to adduce further evidence contemporaneously and asked that they be heard together at [18] and [20]

- If it was speculative to seek leave without having discovery first it was even more speculative to seek discovery without obtaining leave first The discovery application should not have been made first as a discovery order in favour of Fujitrans would or might affect the outcome of the leave application It was for the judge hearing the leave application to decide whether to grant leave or not and if so leave could be granted subject to a successful discovery application at [22]

- As for the substantive discovery appeal before this court the main issue was the relevancy of the documents for which discovery was sought The application for discovery of the remaining seven categories of documents was in fact a fishing expedition It was obvious that Fujitransrsquo discovery application was an attempt to support its appeal against summary judgment The application was not for saving costs and was neither desirable nor necessary for disposing fairly of the cause or matter at [36] [54] and [55]

- [Observation Since Fujitrans would be appealing against this courtrsquos decision in the discovery appeal and it had not filed its leave application it should apply to a judge in chambers for leave to adduce evidence in respect of the summary judgment appeal and to include an application for leave to adduce evidence from

any successful application for discovery If the application was to be unsuccessful then Fujitrans could appeal against that decision to the Court of Appeal and that appeal should be heard together with the appeal against this courtrsquos decision Otherwise the Court of Appeal would have to give a decision which was not in the correct sequence at [24]

- Alternatively BCV could apply to a judge in chambers for a declaration that Fujitrans should not be permitted to adduce further evidence so that any dissatisfied party could thereafter appeal to the Court of Appeal which could then deal with that appeal and the appeal against this courtrsquos decision in the correct sequence at [25]]

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710Held dismissing both appeals(1) In their defence of fair comment in the 1987 action the first and third defendants were not able to particularize the steps OCBC failed to take to ensure that confidential matters were not publicly disclosed and sought to interrogate the bank on what steps the bank had or had not taken This was not permissible The judicial commissioner was right in holding that their interrogatories were fishing(2) The categories of documents the defendants sought in their application for a further and better list of documents in the 1987 action were extremely wide and virtually none of them bore any relevance to the issues raised by the defences The aim of this application was no different from that of the application for leave to serve the interrogatories It was an attempt to mount a comprehensive discovery with the hope of finding something useful for their case(3) The sting of the libel in the 1988 action was the imputation of recklessness irresponsibility and mischievousness on Wrightrsquos part in writing the letter to the newspaper The material issue turned on the state of Wrightrsquos mind at the time he wrote the letter and not whether what he wrote was true or false The classes of documents in respect of which Wright sought discovery had no bearing on that issue They were substantially internal documents of OCBC of which he had absolutely no knowledge They were also not necessary for disposing fairly of the cause or matter or for saving costs The extreme width and lack of specificity of the classes of documents sought also indicated that Wright was lsquofishingrsquo for material to make good his assertions of OCBCrsquos breach of confidentiality(4) The two actions were inextricably intertwined and arose out of the same set of facts To allow Wright discovery of these categories of documents would in effect enable Wright to circumvent Chao Jrsquos order in the 1987 action That was not permissible(5) The application for further and better particulars of the defence in the 1988 action was substantially framed in the form of interrogatories and covered the same ground as the application for discovery Wright was accordingly not entitled to the particulars sought(6) Both the appeals were against the exercise of judicial discretion in relation to interlocutory issues In the absence of clear error of law or principle the appellate court should not interfere No such error of law or principle had been made out

o Can blank out parts of docs where private and confidential ndash there is law to support this Court to make sure that no irrelevcant parts Gene capital v bankerrsquos trust

First conseq therefore =gt other party can apply for discovery

13 Other consequences of failure to comply with discovery order

1048708 O 24 r 16(a) Action dismissed or defence struck out and judgment entered - O 24 r 16(1)(b) Committal of party failing to comply - O 24 r 16(2)(c) Committal of solicitor who fails to notify client of the order for discovery - O 24 r 16(4) - distinct from other

duties of solicitor in relation to discovery(d) inability to rely on undisclosed documents save with leave - O 24 r 16(5)

Main Principles ndash analysis applies throughout civ pro course any type of order ndash these apply- bull Court will usually make an lsquounless orderrsquo in the first instance Ie court will say since you havenrsquot

complied give you x time failing which your claim or defence is struck out- As person who applied for unless order ndash most pple then apply to court for order that action is struck off

o Silly because this allows pther party to plead oral extension of time- bull Disobedience of an unless order is likely to amount to contumelious behaviour (ie contempt)

- bull In order to avoid the dire consequences onus is on defaulter to show that o 1 there was no intention to ignore the peremptory order and o 2 that the failure to obey was due to extraneous circumstances Syed Mohamed Abdul Muthaliff v

Arjan Bhisham Chotrani [1999] 1 SLR 750o but court also said not off the hook necessarily ndash in face of neg competence or sheer indolence Ie

at heart of it need to show that had made positive efforts Must be sufficient efforts (prej to other side ndash secondary stage)

- bull Once an unless order is breached the opposing party can either apply for a final order (see above) or write to the Registry with a suitable draft order (this is correct procedure) Changhe International Investments Pte Ltd v BIL [2004] 4 SLR 449

- bull An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a contract Wiltopps (Asia) Ltd v Drew amp Napier [2000] 3 SLR 244

o applied for extension of time unless order obtained kike consent operates ilke a contract ndash cannot set it aside Can only set aside by filing fresh application pleading undue influence etc most have fresh proceedings so never consent to an unless order

Wiltopps (Asia) Ltd v Drew amp Napier (sued as a firm) and Another [2000] 3 SLR 244FactsThe present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their conduct of the proceedings After the writ of summons was filed in May 1993 there was considerable procrastination by the plaintiffs in proceeding with the action In October 1997 the court ordered affidavits of evidence-in-chief to be filed and exchanged within two months The order listed the witnesses the plaintiffs intended to call After various applications for extension of time for filing the affidavits the defendantsrsquo solicitors set a deadline by which the exchange of affidavits was to take place There was no exchange by the plaintiffs by the deadline and the defendantsrsquo solicitors applied for an order that unless the plaintiffs filed and served on the defendants the affidavits of evidence-in-chief of their witnesses within three days the plaintiffsrsquo action would be dismissed At the hearing of the application the plaintiffsrsquo solicitors offered to accept the unless order provided that they were given seven days instead of three This was agreed to by the defendantsrsquo solicitors and a consent order was made which required the plaintiffs to make the necessary exchange within seven days and in default the plaintiffsrsquo action would be dismissed with costs without further orderThe plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date The plaintiffsrsquo solicitors then applied for an extension of time to comply with the unless order The application was however later withdrawn at the hearing Subsequently the defendantsrsquo solicitors applied for and obtained a default judgment dismissing the plaintiffsrsquo action on the basis of their non-compliance with the unless order The plaintiffsrsquo solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar The plaintiffs appealed against the decisionHeld dismissing the appeal(1) The words ldquoby consentrdquo in the unless order could either evidence a real contract between the parties or could evidence an order made without obligation by the parties In the present case the words in the unless order gave effect to the contract between the parties The order had been made on the basis of the plaintiffs solicitorsrsquo offer to consent if they were given seven days instead of three and which offer was accepted by the defendantsrsquo solicitors There was clearly consideration flowing from the defendants to the plaintiffs(2) The parties were bound by the unless order that was made with their consent If the plaintiffs failed to comply with the terms of the unless order they would be able to avoid the default judgment only if the unless order itself was set aside A judgment or order by consent was binding until it was set aside and fresh proceedings must be commenced to set aside a consent order(3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the affidavit of one of their witnesses by the prescribed deadline The application for extension of time of the unless order was withdrawn and thus the unless order remained in effect The plaintiffsrsquo failure to comply with the unless order was due to their own default and not because they were prevented by the defendantsrsquo solicitors(4) Once the default occurred the unless order operated to dismiss the action ldquowithout further orderrdquo There was no question of setting aside the default judgment which was a consequence of the unless order and the

subsequent default Even if the court had the discretion to interfere with the default judgment the plaintiffsrsquo contumacious and contumelious conduct in this case did not justify such exercise in their favourPer curiamOn the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it To hold otherwise would dilute the utility of such consent orders

Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449FactsThe appellantsplaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar The defendantsrsquo counsel made an application by summons-in-chambers to perfect the unless order Plaintiffsrsquo counsel attended the hearing on 8 March 2000 at which the assistant registrar dismissed the plaintiffsrsquo claim Plaintiffsrsquo counsel did not appealLater the plaintiffs engaged new solicitors who made an application that the Registrar set aside the order of 8 March 2000 At the hearing on 14 June 2000 defendantsrsquo counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar The plaintiffsrsquo rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order The assistant registrar after hearing the point on jurisdiction dismissed the plaintiffsrsquo application without hearing the merits The plaintiffs appealedHeld dismissing the appeal(1) The order of 8 March 2000 by the assistant registrar was right Procedurally the assistant registrar in this application could not entertain the plaintiffsrsquo application and could not normally vary another assistant registrarrsquos order as he lacked jurisdiction to do so(2) An unless order generally took effect without further order However the order had to be perfected in the absence of specific rules relating to perfection(3) There were two paths to perfecting such an order The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with If the draft order was approved and it was faired and extracted the unless order was perfected(4) The second was by the party availing itself of the general application procedure of the court to achieve the same end(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach The plaintiffs could not re-litigate the same matter save by way of appeal which they did not file

The Bonito [2001] 3 SLR 32

FactsFollowing a collision between the appellantsrsquo vessel Bonito and the respondentsrsquo vessel Ah Lam II the respondents commenced an admiralty action in rem against the appellants Subsequently the parties reached a settlement under which unless the quantum of damages was agreed there was to be a reference to the registrar for damages to be assessed At a pre-trial conference on 27 March 1997 counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum once the discovery of documents was completed and counsel for the respondents said that the prospects of a settlement were good Nevertheless the assistant registrar made an ldquounless orderrdquo to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997 failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed failing which the action was to stand dismissed with costsSubsequently the parties required more time for the discovery of documents and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages At the hearings on 18 July 1997 and 3 September 1997 orders were made extending the time to 19 October 1997 and 30 November 1997 respectively In allowing the extensions the assistant registrar did not expressly make a default provision in either of the ordersIn March 1999 the appellantsrsquo solicitors informed the respondentsrsquo solicitors that the action had been dismissed In April 2000 the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so In May 2000 the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000 Subsequently

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

Part 2 Privileged documents ndash not nec to enumerate doc one by one Schedule 2

documents previously in possession custody power need to give details of when documents last in possession and what has become of them

ndash must state Otherwise opp party can strike out action because no proper discovery

9 Order 24 r3(2) ndash Privilege

- dont inadvertently disclose

The Patraikos 2 [2001] 4 SLR 308- Facts- The plaintiffsrsquo cargo was damaged when the defendantsrsquo vessel (the lsquovesselrsquo) on which it was loaded ran

aground The plaintiffs claimed for damage to the cargo contending amongst others that the defendants breached the Hague Rules (the lsquoRulesrsquo) by engaging a second officer (lsquoOrlandarsquo) who was involved in the grounding of another ship (the lsquoSaronikos IIrsquo) previously

- The plaintiffs were dissatisfied with the defendantsrsquo list of documents for discovery and successfully applied for a further and better list of documents The defendantsrsquo appealed against the following set of documents ordered to be disclosed

(1) Various survey reports regarding the vesselrsquos construction (2) Two faxes from their solicitors (lsquoSRTrsquo) to their managing agents (lsquoDioryxrsquo) (3) ndash (5) Various documents relating to the vesselrsquos seaworthiness and (6) Documents pertaining to the grounding of the Saronikos II

o Held dismissing the appealo (1) Discovery of particular documents would only be ordered if they lsquorelate to matters in question in the

cause or matterrsquo O 24 r 7(3) Rules of Court A document related to the matters in question if it - (a) would be evidence on any issue (b) contained information which might enable the party requiring it to either advance his own case or to damage his adversaryrsquos or (c) might fairly lead him to a train of inquiry which may have either of the consequences in (b) To print it more simply if it threw light on the case the document related to matters in question

o (2) A ship must meet various criteria before it was deemed lsquoseaworthyrsquo Hence item (1) documents constituted evidence as to the vesselrsquos seaworthiness which was a matter in question Furthermore the defendants had implied that they were relevant as they had included them in their list of documents

o (3) The faxes in item (2) would throw light on the true qualifications of the vesselrsquos Chief Officer (lsquoSporidisrsquo) at the time of the grounding SRT and Dioryx had broached this issue and Dioryxrsquos practice of employing officers for their experience and not solely on their paper qualifications Sporidisrsquo qualifications was relevant as it might support the claim that the defendants failed to properly man the vessel as required by art III r 1(b) of the Rules Furthermore the faxes were not privileged as the defendants failed to show that they either reflected their instructions to SRT or gave an indication of the legal advice that SRT would be giving them

o (4) The documents in items (3) (4) and (5) were matters in question as they related to the vesselrsquos seaworthiness Furthermore there was no evidence that the volume of documents under item (4) would be so massive such as to make discovery oppressive

o (5) As Orlanda was on the bridge of the Saronikos II when it ran aground the documents in item (6) were relevant If they indicated that the grounding resulted from Orlandarsquos incompetence or negligence then the plaintiffs were entitled to use the evidence to argue that the defendants in engaging Orlanda despite knowing his past employment history failed to properly man the vessel

o Per Curiamo Apart from the statutory protection afforded by s 128(1) of the Evidence Act (Cap 97 1997 Ed) to

communications between lawyers and their clients communications between (a) the clientrsquos legal advisers and third parties if made for the purpose of pending or contemplated litigation and (b) the client or his agent and third parties if made for the purpose of obtaining information to be submitted to the clientrsquos legal advisers for the purpose of obtaining advice on pending or contemplated litigation were protected as well

- Types of privilege 1048708 Legal professional privilege ndash most usual Stock list ndash lsquoall correspondence governed by legal

proff privilege ie corresp bet lawyer and clientrsquo 1048708 Litigation privilege

1048708 Privilege against self-incrimination 1048708 Public interest privilege ndash O24 r15

Document disclosure of which would be injurious to public interest Saving (O 24 r 15)15 Rules 1 to 14 shall be without prejudice to any rule of law which authorises or requires the withholding of any document on the ground that the disclosure of it would be injurious to the public interest

1048708 Without Prejudice communications- Facts upon which privilege is claimed must be set out in the affidavit Gardner v Irvin [1878] 4 Ex D49- See also O24 r 19 ndash other party who inspected by mistake not allowed to rely on those doc unless cout

grants leave This is where he only inspected the doc itself- Whre included in long klist of doc and handed to other side ndash no specific rules need to take out application

and how this mistake arose

10 types of docs to be disclosed ndash order 24 r12

Wright v Times Business Publications Ltd amp Anor [1991] 3 MLJ 12- These rules are identical with the English rules O 24 rr 7(1) and 8 except that the English O 24 r 8 applies

also to discovery before commencement of proceedings - The principles underlying discovery were enunciated as long ago as 1882 by Brett LJ in The Compagnie

Financiere Et Commerciale Du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 They are as applicable today as they were then under the relevant English Rules of Supreme Court 1875 O XXX1 r 12 At pp 62-63 of the report Brett LJ stated the principle as follows

- The doctrine seems to me to go further than that and to go as far as the principle I am about to lay down It seems to me that every document relates to the matters in question in the action which not only would be evidence upon any issue but also which it is reasonable to suppose contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary I have put the words `either directly or indirectly` because it seems to me a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of inquiry which may have either of these two consequences

- Both sides have relied heavily on this oft quoted passage OCBC to show that the specified class of documents must be relevant to the issue raised by the plea of justification and the particulars relied upon by placing emphasis on the phrase `it is reasonable to suppose` and Norman Wright by suggesting that any document or class of documents which will show or lead to a train of inquiry which will show the truth or falsity of whether OCBC had caused or permitted a breach of confidence or had either deliberately or through ignorance or carelessness broken any promise of confidentiality to the four bankers or were not able to keep confidential matters or information which should be kept confidential would be relevant since these were the real issues raised by the plea of justification and the particulars relied upon and not that he Norman Wright did not check the truth of the assertions he had made as contended by OCBC

- As is to be expected both sides are in serious contention as to what is the real issue raised by OCBC`s plea of justification and the particulars relied upon

- I will now deal with this question Mr Gray submits that the `sting` of the libel of which Norman Wright complains is that he was reckless irresponsible and mischievous because he wrote a letter containing unfounded allegations about OCBC

- hellipIn my view it is crucial to the question of discovery in this appeal to determine the real issue raised by the plea of justification and the particulars relied upon as if Mr Gray is right Norman Wright would not be entitled to discovery of the classes of documents requested for they being all internal documents belonging to OCBC of which he had no knowledge when he wrote his letter to the BT and accordingly not relevant

- The words of the unreserved apology (set out in full under the sub-heading The background) which gave rise to Norman Wright`s complaint are to be found in the second paragraph and read BT is satisfied and accepts that the statements concerning the Overseas-Chinese Banking Corp Ltd in the said letter were and are wholly unfounded (Emphasis added)

- The remainder of that paragraph is an expression of belief and the third paragraph is the apology for the alleged consequence of these words

- hellip Accordingly the classes of documents of which Norman Wright has got discovery by the order of the assistant registrar dated 4 October 1988 have no bearing whatsoever on what I have found to be the true issue in the 1988 proceedings and are therefore totally irrelevant

- An examination of the classes of documents all of which relate to the recruiting procedures adopted by OCBC and their internal procedures both generally and specifically to the four named bankers in question for maintaining confidentiality are not only irrelevant but also unnecessary either for disposing fairly of the cause or matter of for saving costs (O 24 r 8) in view of my finding on the issue raised by OCBC`s plea of justification and the particulars relied upon I find it difficult to imagine how an examination of these classes of documents can lead one to reasonably suppose that they might contain information which may fairly lead to a train of inquiry to damage OCBC`s plea of justification that Norman Wright failed or neglected to check out his assertions before making them The rule is stated in 13 Halsbury`s Laws of England (4th Ed) para 38 as f ollows Relevance must be tested by the pleadings and particulars and when particulars have been served which limit a particular issue the discovery on that issue is limited to the matter raised in the particulars

- The extreme width and lack of specificity of the classes of documents in question led Mr Gray to submit that Norman Wright had little idea of what went on in OCBC and was therefore embarking on a `fishing expedition` in the hope of `trawling` through a volume of unnecessary and irrelevant documents hoping that he would make good his assertions of breach of confidentiality on the part of OCBC either deliberately or through ignorance or carelessness or being unable to keep confidential matters which ought to be kept confidential I cannot but agree

- A further argument advanced by Mr Gray was that to allow Norman Wright to have the discovery he had succeeded in getting was to permit him to circumvent the order of Chao Hick Tin JC in the 1987 proceedings He conceded however that I would have to grapple with this question only in the event that I hold that the classes of documents in question were relevant to the issue of justification in the 1988 proceedings

- Having reached the conclusions I have I do not feel it necessary to grapple with this question or to deal with the numerous authorities that were cited to me on this point However since both counsel spent much time on this point I proceed to make some observations on the arguments

- The substance of Mr Gray`s submission was that even if Norman Wright was entitled to discovery of the particular classes of documents in question discovery should be denied as the irresistible inference was that Norman Wright`s underlying motive was to provide him with a defence in the 1987 proceedings He pointed out that the close similarity between the classes of documents sought in the 1988 proceedings and those sought in the 1987 proceedings bore this out In fact for all practical purposes they are identical He further submitted that it was difficult to believe that Norman Wright would have started the 1988 proceedings at all were it not his desire to achieve a collateral advantage in the 1987 proceedings

- Mr Milmo strongly resented these allegations of an ulterior motive which he submitted was mere conjecture on the part of Mr Gray His submission was that if the particular classes of documents of which discovery was sought in the 1988 proceedings were relevant then it was irrelevant that similar discovery was refused in the 1987 proceedings Furthermore there was an implied undertaking that documents obtained in one case would not be used in another case The court could always protect the party giving discovery by withholding production or inspection to a later date as suggested by Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 471 which I wa s urged to follow Jenkins J said It seems to me however that in the further and better affidavit of documents which I now propose to order it will be open to the defendant if so advised to say with respect to particular documents or a particular class of documents that those documents are for this or that reason especially confidential and that he objects to producing them except on an undertaking by the plaintiff in whatever form the defendant conceives would be adequate for his protection If on that the parties cannot agree as to the form of the undertaking then the matter can come before the court as a question concerning the terms if any which ought to be imposed on the plaintiffs as a condition of having production of those particular documents

- I have already drawn attention to the extreme close connection between the 1987 proceedings and the 1988 proceedings and whilst I would not go so far as to say that Norman Wright`s application in the 1988 proceedings were motivated wholly by an unworthy purpose it would not in my view be desirable in the circumstances of this case to allow discovery of the very classes of documents which were refused in the 1987 proceedings whilst the appeal in those proceedings was still pending even if I had found that they were relevant to the 1988 proceedings In coming to this conclusion I was guided by the words of Lord Oliver of Aylmerton who delivered the main speech in the House of Lords in Crest Homes plc v Marks amp Ors [1987] 2 All ER 1074 at p 1078 It is clearly established and has recently been affirmed in this House that a solicitor who in the course of discovery in an action obtains possession of copies of documents belonging to his client`s adversary gives an implied undertaking to the court not to use that material nor to allow it to be used for any purpose other than the proper conduct of that action on behalf of his client (see Home Office v Harman [1982] 1 All ER 532 [1983] 1 AC 280) It must not be used for any `collateral or ulterior` purpose to use the words of Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 470 approved

and adopted by Lord Diplock in Harman`s case [1982] 1 All ER 532 at p 536 [1983] 1 AC 280 at p 302 Thus for instance to use a document obtained on discovery in one action as the foundation for a claim in a different and wholly unrelated proceeding would be a clear breach of the implied undertaking (see Riddick v Thames Board Mills Ltd [1977]3 All ER 677 [1977] QB 881) It has recently been held by Scott J in Sybron Corp v Barclays Bank plc [1985] Ch 229 and this must in my judgment clearly be right that the implied undertaking applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind But the implied undertais one which is given to the court ordering discovery and it is clear and is not disputed by the appellants that it can in appropriate circumstances be released or modified by the court (Emphasis added)

- I must not of course pre-empt the Court of Appeal in the 1987 proceedings but as that judgment now stands and having regard to the allegations and counter-allegation of malice and what I discern to be the intensity with which these two proceedings are being conducted I would not be comfortable in relying on the implied undertaking which it is conceded exists that some information gleaned from these documents and stored in the mind would not be used u nwittingly in the conduct of the 1987 proceedings

11 limitation to discovery ndash order 24 rule 13

12 Application for specific discovery can be made against party

- If not satisfied with discovery made ndash can take out this order- 1048708 O 24 r 5-Order for discovery of particular documents (O 24 r 5)5 mdash(1) Subject to Rule 7 the Court may at any time on the application of any party to a cause or matter make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is or has at any time been in his possession custody or power and if not then in his possession custody or power when he parted with it and what has become of it (2) An order may be made against a party under this Rule notwithstanding that the party may already have made or been required to make a list of documents or an affidavit under Rule 1 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions (a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and (c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case (4) An order under this Rule shall not be made in any cause or matter in respect of any party before an order under Rule 1 has first been obtained in respect of that party unless in the opinion of the Court the order is necessary or desirable

- 1048708 Procedure SIC supported by affidavit affidavit will state belief of deponent that party from whom discovery is sought has or had

possession custody power of documents sought- 1048708 Expanded test of relevance for further discovery - O24 r 5(3)

document on which party relies will rely document which could adversely affect own case or adversely affect support another partyrsquos case document which could lead to party seeking discovery to a train of enquiry resulting in his

obtaining information which may

ndash adversely affect his own case orndash adversely affect support another partyrsquos casendash =gt very wide test

- test adopted from Compagnie Financiere v Peruvian Guano (1882) 11 QBD 55 where court held that document would be relevant if it is reasonable to suppose that it contains

information which would either directly or indirectly enable the party (requiring the discovery) either to advance his own case or damage the case of his adversary

broadly worded test to ensure that all relevant evidence will be made available to ensure that a dispute can be adjudicated fairly

- greater latitude as compared with O24 r 1 but discovery must be ldquonecessary for disposing fairly of the matter or for saving costsrdquo ndash O 24 r 7 Court should inspect the documents and review facts in issue and also whether documents are confidential ndash Wallace Smith v Deloitte Haskins [1997] 1 WLR 257

ndash discretion fo court Litmus test ndash broad- Court must balance need for discovery with risk of abuse of the discovery process - O 24 r 7- Even if documents are relevant discovery will not be ordered if they are not necessary for the fair disposal

of the dispute ndash Dolling-Baker v Merret [1990] 1 WLR 1205 ndash party had dispute with inusrnac epolicy with

insurance company Party found that insurance comp had similar dispute in arbitration with another part on same type of policy Prob not relevant but even if relevant not nec for disposal fairly or for saving csots in fact aggravating costs So if can show good reason why not relevant can gt them out

- also note the need to prevent ldquofishingrdquo ie seeking discovery of documents without demonstrating their need relevance

Be narrow Msut demonstrate relevancept to paras in pleadings and say that this is directly in issue Must be clear and precise about what you want

Norman Wright amp Ors v OCBC [1992] 2 SLR 710 Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil engineering Pte Ltd [2003] 1 SLR 75

SMS Pte Ltd v Power amp Energy Pte Ltd [1996] 1 SLR 767Facts

The respondent cargo owners SMS sued the appellant carriers Energy for damage caused to their cargo which SMS alleged was due to Energyrsquos breach of contract or breach of duty as bailee or negligence Energyrsquos defence was that (a) there was no evidence of loss or damage when the good were delivered and (b) SMS failed to commence their suit within one year of the date of delivery of the goods At the hearing Energy applied for the defence to be struck out under O 24 r 16 of the Rules of the Supreme Court (RSC) as SMS failed to comply with the order for discovery The application to strike out the defence was made orally and not by summons-in-chambers The trial judge exercising his discretion allowed Energyrsquos oral application and truck out the defence and entered judgment in favour of Energy SMS appealed arguing (a) that the trial judge erred in allowing Energy to make their striking out application orally and (b) the trial judge should have struck out Energyrsquos defence because the order for discovery was not an lsquounlessrsquo order

Heldhellip10 At the hearing of the action on 22 February 1995 the respondents applied under O 24 r 16 for the defence to be struck out and judgment to be entered for the respondents This rule provides that if an order for discovery is not complied with the court may where the party in breach is a defendant strike out the defence and enter judgment for the plaintiff The application was made orally and not by way of a summons-in-chambersThis explanation does inform why no discovery had been provided by the appellants and shows there was no suppression of documents by the appellants However even if they did not have any discoverable documents the appellants could and should have filed a nil list giving such particulars as they could of what documents were once in their possession and then verified the list by affidavit This they did not do and were wrong not to Did the appellantsrsquo failure to file a nil list warrant the defence being struck out and judgment being entered It would be appropriate to do so only if such failure created a real risk that a fair trial of the action would be impossible Whether this was so is dealt with shortly23 Furthermore in deciding whether or not to strike out the defence the learned trial judge does not appear to have applied the test whether failure to file the list of documents would have rendered a fair trial of this action impossible Applying this test and bearing in mind the relevant circumstances enumerated earlier in this courtrsquos judgment the failure of the appellants to file their list of documents did not render a fair trial of this action impossible In any event such a list would have been a nil list and the respondents would have been in no better or worse position than they were before the list was filed If the appellants had filed a nil list verified on affidavit the respondents would have had to accept it unless of course they had evidence to the contrary and subject to

their right to ask for discovery of particular documents as provided by O 24 r 7 As Harman LJ said in John Walker amp Sons Ltd v Henry Ost amp Co [1970] RPC 151 at p 154 ll 45ndash48True it is that one cannot when an affidavit of documents or a list of documents is produced file an affidavit to say lsquoWell I do not believe this man has told the truth or disclosed everything he ought torsquo This affidavit is as they say conclusive24 The defence should not therefore have been struck out Instead the respondents should have been called on to prove their case The appellants had by not filing any affidavits of evidence-in-chief of witnesses elected not to adduce any evidence The trial court would have had to decide the case on the evidence available at the close of the respondentsrsquo case25 The appeal is accordingly allowed and the whole of the judgment dated 22 February 1995 is set aside This matter is sent back to the district court for a new trial Pursuant to the provisions of O 24 r 17 the appellants are ordered to file a list of documents even if it be a nil list within one month from the date of this judgment failing which their defence herein shall be deemed struck out and the respondents shall be at liberty to enter judgment against the appellants

Banque Cantonale Vaudoise v RBG Resources plc and Another [2004] 4 SLR 856- Facts- The first defendant RBG Resources plc (ldquoRBGrdquo) had engaged in transactions with various banks which

had either purchased metals from it or lent money to it on the security of metals Many of the metals were allegedly stored in warehouses operated by or on behalf of the second defendant Fujitrans (Singapore) Pte Ltd (ldquoFujitransrdquo) The plaintiff Banque Cantonale Vaudoise (ldquoBCVrdquo) was one of the banks which had transacted with RBG It had a claim against Fujitrans in respect of various groups of metals one of which was listed in Schedule 3 of its Re-Amended Statement of Claim (ldquothe Schedule 3 claimrdquo)

- An assistant registrar granted BCV summary judgment against Fujitrans Fujitrans appealed Before the appeal was heard Fujitrans filed an application for discovery of various categories of documents from BCV Consequently the appeal against summary judgment was held in abeyance An assistant registrar dismissed Fujitransrsquo discovery application save for one category of documents Fujitrans appealed against that decision as it wanted discovery and production of the remaining seven categories of documents

- Fujitransrsquo position was that it had proceeded with the discovery application first in order to show the court with certainty the information and documents which would be referred to by its banking expert Howard Palmer (ldquoPalmerrdquo) in his intended affidavit for the appeal against summary judgment Without knowing the final outcome of the discovery application and the documents to be obtained Fujitransrsquo application for leave would be speculative

- Held dismissing the appeal- Fujitransrsquo discovery application to the assistant registrar and its appeal against that decision were premature

By the time Fujitrans filed its discovery application summary judgment had already been granted to BCV for the Schedule 3 claim Accordingly the office of assistant registrar was functus officio as regards any subsequent discovery application save for claims which were not the subject of the summary judgment Therefore the discovery application could not and should not have been made to the assistant registrar at [12] [15] and [17]

- The discovery application could have been made to a judge in chambers only in the context of the pending summary judgment appeal It should have been made by way of a preliminary application in the appeal proper whereupon the question as to whether the appellant should be granted leave to adduce further evidence would have been considered first Alternatively Fujitrans could have filed the applications for discovery and leave to adduce further evidence contemporaneously and asked that they be heard together at [18] and [20]

- If it was speculative to seek leave without having discovery first it was even more speculative to seek discovery without obtaining leave first The discovery application should not have been made first as a discovery order in favour of Fujitrans would or might affect the outcome of the leave application It was for the judge hearing the leave application to decide whether to grant leave or not and if so leave could be granted subject to a successful discovery application at [22]

- As for the substantive discovery appeal before this court the main issue was the relevancy of the documents for which discovery was sought The application for discovery of the remaining seven categories of documents was in fact a fishing expedition It was obvious that Fujitransrsquo discovery application was an attempt to support its appeal against summary judgment The application was not for saving costs and was neither desirable nor necessary for disposing fairly of the cause or matter at [36] [54] and [55]

- [Observation Since Fujitrans would be appealing against this courtrsquos decision in the discovery appeal and it had not filed its leave application it should apply to a judge in chambers for leave to adduce evidence in respect of the summary judgment appeal and to include an application for leave to adduce evidence from

any successful application for discovery If the application was to be unsuccessful then Fujitrans could appeal against that decision to the Court of Appeal and that appeal should be heard together with the appeal against this courtrsquos decision Otherwise the Court of Appeal would have to give a decision which was not in the correct sequence at [24]

- Alternatively BCV could apply to a judge in chambers for a declaration that Fujitrans should not be permitted to adduce further evidence so that any dissatisfied party could thereafter appeal to the Court of Appeal which could then deal with that appeal and the appeal against this courtrsquos decision in the correct sequence at [25]]

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710Held dismissing both appeals(1) In their defence of fair comment in the 1987 action the first and third defendants were not able to particularize the steps OCBC failed to take to ensure that confidential matters were not publicly disclosed and sought to interrogate the bank on what steps the bank had or had not taken This was not permissible The judicial commissioner was right in holding that their interrogatories were fishing(2) The categories of documents the defendants sought in their application for a further and better list of documents in the 1987 action were extremely wide and virtually none of them bore any relevance to the issues raised by the defences The aim of this application was no different from that of the application for leave to serve the interrogatories It was an attempt to mount a comprehensive discovery with the hope of finding something useful for their case(3) The sting of the libel in the 1988 action was the imputation of recklessness irresponsibility and mischievousness on Wrightrsquos part in writing the letter to the newspaper The material issue turned on the state of Wrightrsquos mind at the time he wrote the letter and not whether what he wrote was true or false The classes of documents in respect of which Wright sought discovery had no bearing on that issue They were substantially internal documents of OCBC of which he had absolutely no knowledge They were also not necessary for disposing fairly of the cause or matter or for saving costs The extreme width and lack of specificity of the classes of documents sought also indicated that Wright was lsquofishingrsquo for material to make good his assertions of OCBCrsquos breach of confidentiality(4) The two actions were inextricably intertwined and arose out of the same set of facts To allow Wright discovery of these categories of documents would in effect enable Wright to circumvent Chao Jrsquos order in the 1987 action That was not permissible(5) The application for further and better particulars of the defence in the 1988 action was substantially framed in the form of interrogatories and covered the same ground as the application for discovery Wright was accordingly not entitled to the particulars sought(6) Both the appeals were against the exercise of judicial discretion in relation to interlocutory issues In the absence of clear error of law or principle the appellate court should not interfere No such error of law or principle had been made out

o Can blank out parts of docs where private and confidential ndash there is law to support this Court to make sure that no irrelevcant parts Gene capital v bankerrsquos trust

First conseq therefore =gt other party can apply for discovery

13 Other consequences of failure to comply with discovery order

1048708 O 24 r 16(a) Action dismissed or defence struck out and judgment entered - O 24 r 16(1)(b) Committal of party failing to comply - O 24 r 16(2)(c) Committal of solicitor who fails to notify client of the order for discovery - O 24 r 16(4) - distinct from other

duties of solicitor in relation to discovery(d) inability to rely on undisclosed documents save with leave - O 24 r 16(5)

Main Principles ndash analysis applies throughout civ pro course any type of order ndash these apply- bull Court will usually make an lsquounless orderrsquo in the first instance Ie court will say since you havenrsquot

complied give you x time failing which your claim or defence is struck out- As person who applied for unless order ndash most pple then apply to court for order that action is struck off

o Silly because this allows pther party to plead oral extension of time- bull Disobedience of an unless order is likely to amount to contumelious behaviour (ie contempt)

- bull In order to avoid the dire consequences onus is on defaulter to show that o 1 there was no intention to ignore the peremptory order and o 2 that the failure to obey was due to extraneous circumstances Syed Mohamed Abdul Muthaliff v

Arjan Bhisham Chotrani [1999] 1 SLR 750o but court also said not off the hook necessarily ndash in face of neg competence or sheer indolence Ie

at heart of it need to show that had made positive efforts Must be sufficient efforts (prej to other side ndash secondary stage)

- bull Once an unless order is breached the opposing party can either apply for a final order (see above) or write to the Registry with a suitable draft order (this is correct procedure) Changhe International Investments Pte Ltd v BIL [2004] 4 SLR 449

- bull An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a contract Wiltopps (Asia) Ltd v Drew amp Napier [2000] 3 SLR 244

o applied for extension of time unless order obtained kike consent operates ilke a contract ndash cannot set it aside Can only set aside by filing fresh application pleading undue influence etc most have fresh proceedings so never consent to an unless order

Wiltopps (Asia) Ltd v Drew amp Napier (sued as a firm) and Another [2000] 3 SLR 244FactsThe present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their conduct of the proceedings After the writ of summons was filed in May 1993 there was considerable procrastination by the plaintiffs in proceeding with the action In October 1997 the court ordered affidavits of evidence-in-chief to be filed and exchanged within two months The order listed the witnesses the plaintiffs intended to call After various applications for extension of time for filing the affidavits the defendantsrsquo solicitors set a deadline by which the exchange of affidavits was to take place There was no exchange by the plaintiffs by the deadline and the defendantsrsquo solicitors applied for an order that unless the plaintiffs filed and served on the defendants the affidavits of evidence-in-chief of their witnesses within three days the plaintiffsrsquo action would be dismissed At the hearing of the application the plaintiffsrsquo solicitors offered to accept the unless order provided that they were given seven days instead of three This was agreed to by the defendantsrsquo solicitors and a consent order was made which required the plaintiffs to make the necessary exchange within seven days and in default the plaintiffsrsquo action would be dismissed with costs without further orderThe plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date The plaintiffsrsquo solicitors then applied for an extension of time to comply with the unless order The application was however later withdrawn at the hearing Subsequently the defendantsrsquo solicitors applied for and obtained a default judgment dismissing the plaintiffsrsquo action on the basis of their non-compliance with the unless order The plaintiffsrsquo solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar The plaintiffs appealed against the decisionHeld dismissing the appeal(1) The words ldquoby consentrdquo in the unless order could either evidence a real contract between the parties or could evidence an order made without obligation by the parties In the present case the words in the unless order gave effect to the contract between the parties The order had been made on the basis of the plaintiffs solicitorsrsquo offer to consent if they were given seven days instead of three and which offer was accepted by the defendantsrsquo solicitors There was clearly consideration flowing from the defendants to the plaintiffs(2) The parties were bound by the unless order that was made with their consent If the plaintiffs failed to comply with the terms of the unless order they would be able to avoid the default judgment only if the unless order itself was set aside A judgment or order by consent was binding until it was set aside and fresh proceedings must be commenced to set aside a consent order(3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the affidavit of one of their witnesses by the prescribed deadline The application for extension of time of the unless order was withdrawn and thus the unless order remained in effect The plaintiffsrsquo failure to comply with the unless order was due to their own default and not because they were prevented by the defendantsrsquo solicitors(4) Once the default occurred the unless order operated to dismiss the action ldquowithout further orderrdquo There was no question of setting aside the default judgment which was a consequence of the unless order and the

subsequent default Even if the court had the discretion to interfere with the default judgment the plaintiffsrsquo contumacious and contumelious conduct in this case did not justify such exercise in their favourPer curiamOn the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it To hold otherwise would dilute the utility of such consent orders

Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449FactsThe appellantsplaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar The defendantsrsquo counsel made an application by summons-in-chambers to perfect the unless order Plaintiffsrsquo counsel attended the hearing on 8 March 2000 at which the assistant registrar dismissed the plaintiffsrsquo claim Plaintiffsrsquo counsel did not appealLater the plaintiffs engaged new solicitors who made an application that the Registrar set aside the order of 8 March 2000 At the hearing on 14 June 2000 defendantsrsquo counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar The plaintiffsrsquo rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order The assistant registrar after hearing the point on jurisdiction dismissed the plaintiffsrsquo application without hearing the merits The plaintiffs appealedHeld dismissing the appeal(1) The order of 8 March 2000 by the assistant registrar was right Procedurally the assistant registrar in this application could not entertain the plaintiffsrsquo application and could not normally vary another assistant registrarrsquos order as he lacked jurisdiction to do so(2) An unless order generally took effect without further order However the order had to be perfected in the absence of specific rules relating to perfection(3) There were two paths to perfecting such an order The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with If the draft order was approved and it was faired and extracted the unless order was perfected(4) The second was by the party availing itself of the general application procedure of the court to achieve the same end(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach The plaintiffs could not re-litigate the same matter save by way of appeal which they did not file

The Bonito [2001] 3 SLR 32

FactsFollowing a collision between the appellantsrsquo vessel Bonito and the respondentsrsquo vessel Ah Lam II the respondents commenced an admiralty action in rem against the appellants Subsequently the parties reached a settlement under which unless the quantum of damages was agreed there was to be a reference to the registrar for damages to be assessed At a pre-trial conference on 27 March 1997 counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum once the discovery of documents was completed and counsel for the respondents said that the prospects of a settlement were good Nevertheless the assistant registrar made an ldquounless orderrdquo to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997 failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed failing which the action was to stand dismissed with costsSubsequently the parties required more time for the discovery of documents and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages At the hearings on 18 July 1997 and 3 September 1997 orders were made extending the time to 19 October 1997 and 30 November 1997 respectively In allowing the extensions the assistant registrar did not expressly make a default provision in either of the ordersIn March 1999 the appellantsrsquo solicitors informed the respondentsrsquo solicitors that the action had been dismissed In April 2000 the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so In May 2000 the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000 Subsequently

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

1048708 Privilege against self-incrimination 1048708 Public interest privilege ndash O24 r15

Document disclosure of which would be injurious to public interest Saving (O 24 r 15)15 Rules 1 to 14 shall be without prejudice to any rule of law which authorises or requires the withholding of any document on the ground that the disclosure of it would be injurious to the public interest

1048708 Without Prejudice communications- Facts upon which privilege is claimed must be set out in the affidavit Gardner v Irvin [1878] 4 Ex D49- See also O24 r 19 ndash other party who inspected by mistake not allowed to rely on those doc unless cout

grants leave This is where he only inspected the doc itself- Whre included in long klist of doc and handed to other side ndash no specific rules need to take out application

and how this mistake arose

10 types of docs to be disclosed ndash order 24 r12

Wright v Times Business Publications Ltd amp Anor [1991] 3 MLJ 12- These rules are identical with the English rules O 24 rr 7(1) and 8 except that the English O 24 r 8 applies

also to discovery before commencement of proceedings - The principles underlying discovery were enunciated as long ago as 1882 by Brett LJ in The Compagnie

Financiere Et Commerciale Du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 They are as applicable today as they were then under the relevant English Rules of Supreme Court 1875 O XXX1 r 12 At pp 62-63 of the report Brett LJ stated the principle as follows

- The doctrine seems to me to go further than that and to go as far as the principle I am about to lay down It seems to me that every document relates to the matters in question in the action which not only would be evidence upon any issue but also which it is reasonable to suppose contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary I have put the words `either directly or indirectly` because it seems to me a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of inquiry which may have either of these two consequences

- Both sides have relied heavily on this oft quoted passage OCBC to show that the specified class of documents must be relevant to the issue raised by the plea of justification and the particulars relied upon by placing emphasis on the phrase `it is reasonable to suppose` and Norman Wright by suggesting that any document or class of documents which will show or lead to a train of inquiry which will show the truth or falsity of whether OCBC had caused or permitted a breach of confidence or had either deliberately or through ignorance or carelessness broken any promise of confidentiality to the four bankers or were not able to keep confidential matters or information which should be kept confidential would be relevant since these were the real issues raised by the plea of justification and the particulars relied upon and not that he Norman Wright did not check the truth of the assertions he had made as contended by OCBC

- As is to be expected both sides are in serious contention as to what is the real issue raised by OCBC`s plea of justification and the particulars relied upon

- I will now deal with this question Mr Gray submits that the `sting` of the libel of which Norman Wright complains is that he was reckless irresponsible and mischievous because he wrote a letter containing unfounded allegations about OCBC

- hellipIn my view it is crucial to the question of discovery in this appeal to determine the real issue raised by the plea of justification and the particulars relied upon as if Mr Gray is right Norman Wright would not be entitled to discovery of the classes of documents requested for they being all internal documents belonging to OCBC of which he had no knowledge when he wrote his letter to the BT and accordingly not relevant

- The words of the unreserved apology (set out in full under the sub-heading The background) which gave rise to Norman Wright`s complaint are to be found in the second paragraph and read BT is satisfied and accepts that the statements concerning the Overseas-Chinese Banking Corp Ltd in the said letter were and are wholly unfounded (Emphasis added)

- The remainder of that paragraph is an expression of belief and the third paragraph is the apology for the alleged consequence of these words

- hellip Accordingly the classes of documents of which Norman Wright has got discovery by the order of the assistant registrar dated 4 October 1988 have no bearing whatsoever on what I have found to be the true issue in the 1988 proceedings and are therefore totally irrelevant

- An examination of the classes of documents all of which relate to the recruiting procedures adopted by OCBC and their internal procedures both generally and specifically to the four named bankers in question for maintaining confidentiality are not only irrelevant but also unnecessary either for disposing fairly of the cause or matter of for saving costs (O 24 r 8) in view of my finding on the issue raised by OCBC`s plea of justification and the particulars relied upon I find it difficult to imagine how an examination of these classes of documents can lead one to reasonably suppose that they might contain information which may fairly lead to a train of inquiry to damage OCBC`s plea of justification that Norman Wright failed or neglected to check out his assertions before making them The rule is stated in 13 Halsbury`s Laws of England (4th Ed) para 38 as f ollows Relevance must be tested by the pleadings and particulars and when particulars have been served which limit a particular issue the discovery on that issue is limited to the matter raised in the particulars

- The extreme width and lack of specificity of the classes of documents in question led Mr Gray to submit that Norman Wright had little idea of what went on in OCBC and was therefore embarking on a `fishing expedition` in the hope of `trawling` through a volume of unnecessary and irrelevant documents hoping that he would make good his assertions of breach of confidentiality on the part of OCBC either deliberately or through ignorance or carelessness or being unable to keep confidential matters which ought to be kept confidential I cannot but agree

- A further argument advanced by Mr Gray was that to allow Norman Wright to have the discovery he had succeeded in getting was to permit him to circumvent the order of Chao Hick Tin JC in the 1987 proceedings He conceded however that I would have to grapple with this question only in the event that I hold that the classes of documents in question were relevant to the issue of justification in the 1988 proceedings

- Having reached the conclusions I have I do not feel it necessary to grapple with this question or to deal with the numerous authorities that were cited to me on this point However since both counsel spent much time on this point I proceed to make some observations on the arguments

- The substance of Mr Gray`s submission was that even if Norman Wright was entitled to discovery of the particular classes of documents in question discovery should be denied as the irresistible inference was that Norman Wright`s underlying motive was to provide him with a defence in the 1987 proceedings He pointed out that the close similarity between the classes of documents sought in the 1988 proceedings and those sought in the 1987 proceedings bore this out In fact for all practical purposes they are identical He further submitted that it was difficult to believe that Norman Wright would have started the 1988 proceedings at all were it not his desire to achieve a collateral advantage in the 1987 proceedings

- Mr Milmo strongly resented these allegations of an ulterior motive which he submitted was mere conjecture on the part of Mr Gray His submission was that if the particular classes of documents of which discovery was sought in the 1988 proceedings were relevant then it was irrelevant that similar discovery was refused in the 1987 proceedings Furthermore there was an implied undertaking that documents obtained in one case would not be used in another case The court could always protect the party giving discovery by withholding production or inspection to a later date as suggested by Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 471 which I wa s urged to follow Jenkins J said It seems to me however that in the further and better affidavit of documents which I now propose to order it will be open to the defendant if so advised to say with respect to particular documents or a particular class of documents that those documents are for this or that reason especially confidential and that he objects to producing them except on an undertaking by the plaintiff in whatever form the defendant conceives would be adequate for his protection If on that the parties cannot agree as to the form of the undertaking then the matter can come before the court as a question concerning the terms if any which ought to be imposed on the plaintiffs as a condition of having production of those particular documents

- I have already drawn attention to the extreme close connection between the 1987 proceedings and the 1988 proceedings and whilst I would not go so far as to say that Norman Wright`s application in the 1988 proceedings were motivated wholly by an unworthy purpose it would not in my view be desirable in the circumstances of this case to allow discovery of the very classes of documents which were refused in the 1987 proceedings whilst the appeal in those proceedings was still pending even if I had found that they were relevant to the 1988 proceedings In coming to this conclusion I was guided by the words of Lord Oliver of Aylmerton who delivered the main speech in the House of Lords in Crest Homes plc v Marks amp Ors [1987] 2 All ER 1074 at p 1078 It is clearly established and has recently been affirmed in this House that a solicitor who in the course of discovery in an action obtains possession of copies of documents belonging to his client`s adversary gives an implied undertaking to the court not to use that material nor to allow it to be used for any purpose other than the proper conduct of that action on behalf of his client (see Home Office v Harman [1982] 1 All ER 532 [1983] 1 AC 280) It must not be used for any `collateral or ulterior` purpose to use the words of Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 470 approved

and adopted by Lord Diplock in Harman`s case [1982] 1 All ER 532 at p 536 [1983] 1 AC 280 at p 302 Thus for instance to use a document obtained on discovery in one action as the foundation for a claim in a different and wholly unrelated proceeding would be a clear breach of the implied undertaking (see Riddick v Thames Board Mills Ltd [1977]3 All ER 677 [1977] QB 881) It has recently been held by Scott J in Sybron Corp v Barclays Bank plc [1985] Ch 229 and this must in my judgment clearly be right that the implied undertaking applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind But the implied undertais one which is given to the court ordering discovery and it is clear and is not disputed by the appellants that it can in appropriate circumstances be released or modified by the court (Emphasis added)

- I must not of course pre-empt the Court of Appeal in the 1987 proceedings but as that judgment now stands and having regard to the allegations and counter-allegation of malice and what I discern to be the intensity with which these two proceedings are being conducted I would not be comfortable in relying on the implied undertaking which it is conceded exists that some information gleaned from these documents and stored in the mind would not be used u nwittingly in the conduct of the 1987 proceedings

11 limitation to discovery ndash order 24 rule 13

12 Application for specific discovery can be made against party

- If not satisfied with discovery made ndash can take out this order- 1048708 O 24 r 5-Order for discovery of particular documents (O 24 r 5)5 mdash(1) Subject to Rule 7 the Court may at any time on the application of any party to a cause or matter make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is or has at any time been in his possession custody or power and if not then in his possession custody or power when he parted with it and what has become of it (2) An order may be made against a party under this Rule notwithstanding that the party may already have made or been required to make a list of documents or an affidavit under Rule 1 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions (a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and (c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case (4) An order under this Rule shall not be made in any cause or matter in respect of any party before an order under Rule 1 has first been obtained in respect of that party unless in the opinion of the Court the order is necessary or desirable

- 1048708 Procedure SIC supported by affidavit affidavit will state belief of deponent that party from whom discovery is sought has or had

possession custody power of documents sought- 1048708 Expanded test of relevance for further discovery - O24 r 5(3)

document on which party relies will rely document which could adversely affect own case or adversely affect support another partyrsquos case document which could lead to party seeking discovery to a train of enquiry resulting in his

obtaining information which may

ndash adversely affect his own case orndash adversely affect support another partyrsquos casendash =gt very wide test

- test adopted from Compagnie Financiere v Peruvian Guano (1882) 11 QBD 55 where court held that document would be relevant if it is reasonable to suppose that it contains

information which would either directly or indirectly enable the party (requiring the discovery) either to advance his own case or damage the case of his adversary

broadly worded test to ensure that all relevant evidence will be made available to ensure that a dispute can be adjudicated fairly

- greater latitude as compared with O24 r 1 but discovery must be ldquonecessary for disposing fairly of the matter or for saving costsrdquo ndash O 24 r 7 Court should inspect the documents and review facts in issue and also whether documents are confidential ndash Wallace Smith v Deloitte Haskins [1997] 1 WLR 257

ndash discretion fo court Litmus test ndash broad- Court must balance need for discovery with risk of abuse of the discovery process - O 24 r 7- Even if documents are relevant discovery will not be ordered if they are not necessary for the fair disposal

of the dispute ndash Dolling-Baker v Merret [1990] 1 WLR 1205 ndash party had dispute with inusrnac epolicy with

insurance company Party found that insurance comp had similar dispute in arbitration with another part on same type of policy Prob not relevant but even if relevant not nec for disposal fairly or for saving csots in fact aggravating costs So if can show good reason why not relevant can gt them out

- also note the need to prevent ldquofishingrdquo ie seeking discovery of documents without demonstrating their need relevance

Be narrow Msut demonstrate relevancept to paras in pleadings and say that this is directly in issue Must be clear and precise about what you want

Norman Wright amp Ors v OCBC [1992] 2 SLR 710 Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil engineering Pte Ltd [2003] 1 SLR 75

SMS Pte Ltd v Power amp Energy Pte Ltd [1996] 1 SLR 767Facts

The respondent cargo owners SMS sued the appellant carriers Energy for damage caused to their cargo which SMS alleged was due to Energyrsquos breach of contract or breach of duty as bailee or negligence Energyrsquos defence was that (a) there was no evidence of loss or damage when the good were delivered and (b) SMS failed to commence their suit within one year of the date of delivery of the goods At the hearing Energy applied for the defence to be struck out under O 24 r 16 of the Rules of the Supreme Court (RSC) as SMS failed to comply with the order for discovery The application to strike out the defence was made orally and not by summons-in-chambers The trial judge exercising his discretion allowed Energyrsquos oral application and truck out the defence and entered judgment in favour of Energy SMS appealed arguing (a) that the trial judge erred in allowing Energy to make their striking out application orally and (b) the trial judge should have struck out Energyrsquos defence because the order for discovery was not an lsquounlessrsquo order

Heldhellip10 At the hearing of the action on 22 February 1995 the respondents applied under O 24 r 16 for the defence to be struck out and judgment to be entered for the respondents This rule provides that if an order for discovery is not complied with the court may where the party in breach is a defendant strike out the defence and enter judgment for the plaintiff The application was made orally and not by way of a summons-in-chambersThis explanation does inform why no discovery had been provided by the appellants and shows there was no suppression of documents by the appellants However even if they did not have any discoverable documents the appellants could and should have filed a nil list giving such particulars as they could of what documents were once in their possession and then verified the list by affidavit This they did not do and were wrong not to Did the appellantsrsquo failure to file a nil list warrant the defence being struck out and judgment being entered It would be appropriate to do so only if such failure created a real risk that a fair trial of the action would be impossible Whether this was so is dealt with shortly23 Furthermore in deciding whether or not to strike out the defence the learned trial judge does not appear to have applied the test whether failure to file the list of documents would have rendered a fair trial of this action impossible Applying this test and bearing in mind the relevant circumstances enumerated earlier in this courtrsquos judgment the failure of the appellants to file their list of documents did not render a fair trial of this action impossible In any event such a list would have been a nil list and the respondents would have been in no better or worse position than they were before the list was filed If the appellants had filed a nil list verified on affidavit the respondents would have had to accept it unless of course they had evidence to the contrary and subject to

their right to ask for discovery of particular documents as provided by O 24 r 7 As Harman LJ said in John Walker amp Sons Ltd v Henry Ost amp Co [1970] RPC 151 at p 154 ll 45ndash48True it is that one cannot when an affidavit of documents or a list of documents is produced file an affidavit to say lsquoWell I do not believe this man has told the truth or disclosed everything he ought torsquo This affidavit is as they say conclusive24 The defence should not therefore have been struck out Instead the respondents should have been called on to prove their case The appellants had by not filing any affidavits of evidence-in-chief of witnesses elected not to adduce any evidence The trial court would have had to decide the case on the evidence available at the close of the respondentsrsquo case25 The appeal is accordingly allowed and the whole of the judgment dated 22 February 1995 is set aside This matter is sent back to the district court for a new trial Pursuant to the provisions of O 24 r 17 the appellants are ordered to file a list of documents even if it be a nil list within one month from the date of this judgment failing which their defence herein shall be deemed struck out and the respondents shall be at liberty to enter judgment against the appellants

Banque Cantonale Vaudoise v RBG Resources plc and Another [2004] 4 SLR 856- Facts- The first defendant RBG Resources plc (ldquoRBGrdquo) had engaged in transactions with various banks which

had either purchased metals from it or lent money to it on the security of metals Many of the metals were allegedly stored in warehouses operated by or on behalf of the second defendant Fujitrans (Singapore) Pte Ltd (ldquoFujitransrdquo) The plaintiff Banque Cantonale Vaudoise (ldquoBCVrdquo) was one of the banks which had transacted with RBG It had a claim against Fujitrans in respect of various groups of metals one of which was listed in Schedule 3 of its Re-Amended Statement of Claim (ldquothe Schedule 3 claimrdquo)

- An assistant registrar granted BCV summary judgment against Fujitrans Fujitrans appealed Before the appeal was heard Fujitrans filed an application for discovery of various categories of documents from BCV Consequently the appeal against summary judgment was held in abeyance An assistant registrar dismissed Fujitransrsquo discovery application save for one category of documents Fujitrans appealed against that decision as it wanted discovery and production of the remaining seven categories of documents

- Fujitransrsquo position was that it had proceeded with the discovery application first in order to show the court with certainty the information and documents which would be referred to by its banking expert Howard Palmer (ldquoPalmerrdquo) in his intended affidavit for the appeal against summary judgment Without knowing the final outcome of the discovery application and the documents to be obtained Fujitransrsquo application for leave would be speculative

- Held dismissing the appeal- Fujitransrsquo discovery application to the assistant registrar and its appeal against that decision were premature

By the time Fujitrans filed its discovery application summary judgment had already been granted to BCV for the Schedule 3 claim Accordingly the office of assistant registrar was functus officio as regards any subsequent discovery application save for claims which were not the subject of the summary judgment Therefore the discovery application could not and should not have been made to the assistant registrar at [12] [15] and [17]

- The discovery application could have been made to a judge in chambers only in the context of the pending summary judgment appeal It should have been made by way of a preliminary application in the appeal proper whereupon the question as to whether the appellant should be granted leave to adduce further evidence would have been considered first Alternatively Fujitrans could have filed the applications for discovery and leave to adduce further evidence contemporaneously and asked that they be heard together at [18] and [20]

- If it was speculative to seek leave without having discovery first it was even more speculative to seek discovery without obtaining leave first The discovery application should not have been made first as a discovery order in favour of Fujitrans would or might affect the outcome of the leave application It was for the judge hearing the leave application to decide whether to grant leave or not and if so leave could be granted subject to a successful discovery application at [22]

- As for the substantive discovery appeal before this court the main issue was the relevancy of the documents for which discovery was sought The application for discovery of the remaining seven categories of documents was in fact a fishing expedition It was obvious that Fujitransrsquo discovery application was an attempt to support its appeal against summary judgment The application was not for saving costs and was neither desirable nor necessary for disposing fairly of the cause or matter at [36] [54] and [55]

- [Observation Since Fujitrans would be appealing against this courtrsquos decision in the discovery appeal and it had not filed its leave application it should apply to a judge in chambers for leave to adduce evidence in respect of the summary judgment appeal and to include an application for leave to adduce evidence from

any successful application for discovery If the application was to be unsuccessful then Fujitrans could appeal against that decision to the Court of Appeal and that appeal should be heard together with the appeal against this courtrsquos decision Otherwise the Court of Appeal would have to give a decision which was not in the correct sequence at [24]

- Alternatively BCV could apply to a judge in chambers for a declaration that Fujitrans should not be permitted to adduce further evidence so that any dissatisfied party could thereafter appeal to the Court of Appeal which could then deal with that appeal and the appeal against this courtrsquos decision in the correct sequence at [25]]

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710Held dismissing both appeals(1) In their defence of fair comment in the 1987 action the first and third defendants were not able to particularize the steps OCBC failed to take to ensure that confidential matters were not publicly disclosed and sought to interrogate the bank on what steps the bank had or had not taken This was not permissible The judicial commissioner was right in holding that their interrogatories were fishing(2) The categories of documents the defendants sought in their application for a further and better list of documents in the 1987 action were extremely wide and virtually none of them bore any relevance to the issues raised by the defences The aim of this application was no different from that of the application for leave to serve the interrogatories It was an attempt to mount a comprehensive discovery with the hope of finding something useful for their case(3) The sting of the libel in the 1988 action was the imputation of recklessness irresponsibility and mischievousness on Wrightrsquos part in writing the letter to the newspaper The material issue turned on the state of Wrightrsquos mind at the time he wrote the letter and not whether what he wrote was true or false The classes of documents in respect of which Wright sought discovery had no bearing on that issue They were substantially internal documents of OCBC of which he had absolutely no knowledge They were also not necessary for disposing fairly of the cause or matter or for saving costs The extreme width and lack of specificity of the classes of documents sought also indicated that Wright was lsquofishingrsquo for material to make good his assertions of OCBCrsquos breach of confidentiality(4) The two actions were inextricably intertwined and arose out of the same set of facts To allow Wright discovery of these categories of documents would in effect enable Wright to circumvent Chao Jrsquos order in the 1987 action That was not permissible(5) The application for further and better particulars of the defence in the 1988 action was substantially framed in the form of interrogatories and covered the same ground as the application for discovery Wright was accordingly not entitled to the particulars sought(6) Both the appeals were against the exercise of judicial discretion in relation to interlocutory issues In the absence of clear error of law or principle the appellate court should not interfere No such error of law or principle had been made out

o Can blank out parts of docs where private and confidential ndash there is law to support this Court to make sure that no irrelevcant parts Gene capital v bankerrsquos trust

First conseq therefore =gt other party can apply for discovery

13 Other consequences of failure to comply with discovery order

1048708 O 24 r 16(a) Action dismissed or defence struck out and judgment entered - O 24 r 16(1)(b) Committal of party failing to comply - O 24 r 16(2)(c) Committal of solicitor who fails to notify client of the order for discovery - O 24 r 16(4) - distinct from other

duties of solicitor in relation to discovery(d) inability to rely on undisclosed documents save with leave - O 24 r 16(5)

Main Principles ndash analysis applies throughout civ pro course any type of order ndash these apply- bull Court will usually make an lsquounless orderrsquo in the first instance Ie court will say since you havenrsquot

complied give you x time failing which your claim or defence is struck out- As person who applied for unless order ndash most pple then apply to court for order that action is struck off

o Silly because this allows pther party to plead oral extension of time- bull Disobedience of an unless order is likely to amount to contumelious behaviour (ie contempt)

- bull In order to avoid the dire consequences onus is on defaulter to show that o 1 there was no intention to ignore the peremptory order and o 2 that the failure to obey was due to extraneous circumstances Syed Mohamed Abdul Muthaliff v

Arjan Bhisham Chotrani [1999] 1 SLR 750o but court also said not off the hook necessarily ndash in face of neg competence or sheer indolence Ie

at heart of it need to show that had made positive efforts Must be sufficient efforts (prej to other side ndash secondary stage)

- bull Once an unless order is breached the opposing party can either apply for a final order (see above) or write to the Registry with a suitable draft order (this is correct procedure) Changhe International Investments Pte Ltd v BIL [2004] 4 SLR 449

- bull An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a contract Wiltopps (Asia) Ltd v Drew amp Napier [2000] 3 SLR 244

o applied for extension of time unless order obtained kike consent operates ilke a contract ndash cannot set it aside Can only set aside by filing fresh application pleading undue influence etc most have fresh proceedings so never consent to an unless order

Wiltopps (Asia) Ltd v Drew amp Napier (sued as a firm) and Another [2000] 3 SLR 244FactsThe present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their conduct of the proceedings After the writ of summons was filed in May 1993 there was considerable procrastination by the plaintiffs in proceeding with the action In October 1997 the court ordered affidavits of evidence-in-chief to be filed and exchanged within two months The order listed the witnesses the plaintiffs intended to call After various applications for extension of time for filing the affidavits the defendantsrsquo solicitors set a deadline by which the exchange of affidavits was to take place There was no exchange by the plaintiffs by the deadline and the defendantsrsquo solicitors applied for an order that unless the plaintiffs filed and served on the defendants the affidavits of evidence-in-chief of their witnesses within three days the plaintiffsrsquo action would be dismissed At the hearing of the application the plaintiffsrsquo solicitors offered to accept the unless order provided that they were given seven days instead of three This was agreed to by the defendantsrsquo solicitors and a consent order was made which required the plaintiffs to make the necessary exchange within seven days and in default the plaintiffsrsquo action would be dismissed with costs without further orderThe plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date The plaintiffsrsquo solicitors then applied for an extension of time to comply with the unless order The application was however later withdrawn at the hearing Subsequently the defendantsrsquo solicitors applied for and obtained a default judgment dismissing the plaintiffsrsquo action on the basis of their non-compliance with the unless order The plaintiffsrsquo solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar The plaintiffs appealed against the decisionHeld dismissing the appeal(1) The words ldquoby consentrdquo in the unless order could either evidence a real contract between the parties or could evidence an order made without obligation by the parties In the present case the words in the unless order gave effect to the contract between the parties The order had been made on the basis of the plaintiffs solicitorsrsquo offer to consent if they were given seven days instead of three and which offer was accepted by the defendantsrsquo solicitors There was clearly consideration flowing from the defendants to the plaintiffs(2) The parties were bound by the unless order that was made with their consent If the plaintiffs failed to comply with the terms of the unless order they would be able to avoid the default judgment only if the unless order itself was set aside A judgment or order by consent was binding until it was set aside and fresh proceedings must be commenced to set aside a consent order(3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the affidavit of one of their witnesses by the prescribed deadline The application for extension of time of the unless order was withdrawn and thus the unless order remained in effect The plaintiffsrsquo failure to comply with the unless order was due to their own default and not because they were prevented by the defendantsrsquo solicitors(4) Once the default occurred the unless order operated to dismiss the action ldquowithout further orderrdquo There was no question of setting aside the default judgment which was a consequence of the unless order and the

subsequent default Even if the court had the discretion to interfere with the default judgment the plaintiffsrsquo contumacious and contumelious conduct in this case did not justify such exercise in their favourPer curiamOn the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it To hold otherwise would dilute the utility of such consent orders

Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449FactsThe appellantsplaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar The defendantsrsquo counsel made an application by summons-in-chambers to perfect the unless order Plaintiffsrsquo counsel attended the hearing on 8 March 2000 at which the assistant registrar dismissed the plaintiffsrsquo claim Plaintiffsrsquo counsel did not appealLater the plaintiffs engaged new solicitors who made an application that the Registrar set aside the order of 8 March 2000 At the hearing on 14 June 2000 defendantsrsquo counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar The plaintiffsrsquo rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order The assistant registrar after hearing the point on jurisdiction dismissed the plaintiffsrsquo application without hearing the merits The plaintiffs appealedHeld dismissing the appeal(1) The order of 8 March 2000 by the assistant registrar was right Procedurally the assistant registrar in this application could not entertain the plaintiffsrsquo application and could not normally vary another assistant registrarrsquos order as he lacked jurisdiction to do so(2) An unless order generally took effect without further order However the order had to be perfected in the absence of specific rules relating to perfection(3) There were two paths to perfecting such an order The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with If the draft order was approved and it was faired and extracted the unless order was perfected(4) The second was by the party availing itself of the general application procedure of the court to achieve the same end(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach The plaintiffs could not re-litigate the same matter save by way of appeal which they did not file

The Bonito [2001] 3 SLR 32

FactsFollowing a collision between the appellantsrsquo vessel Bonito and the respondentsrsquo vessel Ah Lam II the respondents commenced an admiralty action in rem against the appellants Subsequently the parties reached a settlement under which unless the quantum of damages was agreed there was to be a reference to the registrar for damages to be assessed At a pre-trial conference on 27 March 1997 counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum once the discovery of documents was completed and counsel for the respondents said that the prospects of a settlement were good Nevertheless the assistant registrar made an ldquounless orderrdquo to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997 failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed failing which the action was to stand dismissed with costsSubsequently the parties required more time for the discovery of documents and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages At the hearings on 18 July 1997 and 3 September 1997 orders were made extending the time to 19 October 1997 and 30 November 1997 respectively In allowing the extensions the assistant registrar did not expressly make a default provision in either of the ordersIn March 1999 the appellantsrsquo solicitors informed the respondentsrsquo solicitors that the action had been dismissed In April 2000 the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so In May 2000 the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000 Subsequently

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

- An examination of the classes of documents all of which relate to the recruiting procedures adopted by OCBC and their internal procedures both generally and specifically to the four named bankers in question for maintaining confidentiality are not only irrelevant but also unnecessary either for disposing fairly of the cause or matter of for saving costs (O 24 r 8) in view of my finding on the issue raised by OCBC`s plea of justification and the particulars relied upon I find it difficult to imagine how an examination of these classes of documents can lead one to reasonably suppose that they might contain information which may fairly lead to a train of inquiry to damage OCBC`s plea of justification that Norman Wright failed or neglected to check out his assertions before making them The rule is stated in 13 Halsbury`s Laws of England (4th Ed) para 38 as f ollows Relevance must be tested by the pleadings and particulars and when particulars have been served which limit a particular issue the discovery on that issue is limited to the matter raised in the particulars

- The extreme width and lack of specificity of the classes of documents in question led Mr Gray to submit that Norman Wright had little idea of what went on in OCBC and was therefore embarking on a `fishing expedition` in the hope of `trawling` through a volume of unnecessary and irrelevant documents hoping that he would make good his assertions of breach of confidentiality on the part of OCBC either deliberately or through ignorance or carelessness or being unable to keep confidential matters which ought to be kept confidential I cannot but agree

- A further argument advanced by Mr Gray was that to allow Norman Wright to have the discovery he had succeeded in getting was to permit him to circumvent the order of Chao Hick Tin JC in the 1987 proceedings He conceded however that I would have to grapple with this question only in the event that I hold that the classes of documents in question were relevant to the issue of justification in the 1988 proceedings

- Having reached the conclusions I have I do not feel it necessary to grapple with this question or to deal with the numerous authorities that were cited to me on this point However since both counsel spent much time on this point I proceed to make some observations on the arguments

- The substance of Mr Gray`s submission was that even if Norman Wright was entitled to discovery of the particular classes of documents in question discovery should be denied as the irresistible inference was that Norman Wright`s underlying motive was to provide him with a defence in the 1987 proceedings He pointed out that the close similarity between the classes of documents sought in the 1988 proceedings and those sought in the 1987 proceedings bore this out In fact for all practical purposes they are identical He further submitted that it was difficult to believe that Norman Wright would have started the 1988 proceedings at all were it not his desire to achieve a collateral advantage in the 1987 proceedings

- Mr Milmo strongly resented these allegations of an ulterior motive which he submitted was mere conjecture on the part of Mr Gray His submission was that if the particular classes of documents of which discovery was sought in the 1988 proceedings were relevant then it was irrelevant that similar discovery was refused in the 1987 proceedings Furthermore there was an implied undertaking that documents obtained in one case would not be used in another case The court could always protect the party giving discovery by withholding production or inspection to a later date as suggested by Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 471 which I wa s urged to follow Jenkins J said It seems to me however that in the further and better affidavit of documents which I now propose to order it will be open to the defendant if so advised to say with respect to particular documents or a particular class of documents that those documents are for this or that reason especially confidential and that he objects to producing them except on an undertaking by the plaintiff in whatever form the defendant conceives would be adequate for his protection If on that the parties cannot agree as to the form of the undertaking then the matter can come before the court as a question concerning the terms if any which ought to be imposed on the plaintiffs as a condition of having production of those particular documents

- I have already drawn attention to the extreme close connection between the 1987 proceedings and the 1988 proceedings and whilst I would not go so far as to say that Norman Wright`s application in the 1988 proceedings were motivated wholly by an unworthy purpose it would not in my view be desirable in the circumstances of this case to allow discovery of the very classes of documents which were refused in the 1987 proceedings whilst the appeal in those proceedings was still pending even if I had found that they were relevant to the 1988 proceedings In coming to this conclusion I was guided by the words of Lord Oliver of Aylmerton who delivered the main speech in the House of Lords in Crest Homes plc v Marks amp Ors [1987] 2 All ER 1074 at p 1078 It is clearly established and has recently been affirmed in this House that a solicitor who in the course of discovery in an action obtains possession of copies of documents belonging to his client`s adversary gives an implied undertaking to the court not to use that material nor to allow it to be used for any purpose other than the proper conduct of that action on behalf of his client (see Home Office v Harman [1982] 1 All ER 532 [1983] 1 AC 280) It must not be used for any `collateral or ulterior` purpose to use the words of Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 470 approved

and adopted by Lord Diplock in Harman`s case [1982] 1 All ER 532 at p 536 [1983] 1 AC 280 at p 302 Thus for instance to use a document obtained on discovery in one action as the foundation for a claim in a different and wholly unrelated proceeding would be a clear breach of the implied undertaking (see Riddick v Thames Board Mills Ltd [1977]3 All ER 677 [1977] QB 881) It has recently been held by Scott J in Sybron Corp v Barclays Bank plc [1985] Ch 229 and this must in my judgment clearly be right that the implied undertaking applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind But the implied undertais one which is given to the court ordering discovery and it is clear and is not disputed by the appellants that it can in appropriate circumstances be released or modified by the court (Emphasis added)

- I must not of course pre-empt the Court of Appeal in the 1987 proceedings but as that judgment now stands and having regard to the allegations and counter-allegation of malice and what I discern to be the intensity with which these two proceedings are being conducted I would not be comfortable in relying on the implied undertaking which it is conceded exists that some information gleaned from these documents and stored in the mind would not be used u nwittingly in the conduct of the 1987 proceedings

11 limitation to discovery ndash order 24 rule 13

12 Application for specific discovery can be made against party

- If not satisfied with discovery made ndash can take out this order- 1048708 O 24 r 5-Order for discovery of particular documents (O 24 r 5)5 mdash(1) Subject to Rule 7 the Court may at any time on the application of any party to a cause or matter make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is or has at any time been in his possession custody or power and if not then in his possession custody or power when he parted with it and what has become of it (2) An order may be made against a party under this Rule notwithstanding that the party may already have made or been required to make a list of documents or an affidavit under Rule 1 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions (a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and (c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case (4) An order under this Rule shall not be made in any cause or matter in respect of any party before an order under Rule 1 has first been obtained in respect of that party unless in the opinion of the Court the order is necessary or desirable

- 1048708 Procedure SIC supported by affidavit affidavit will state belief of deponent that party from whom discovery is sought has or had

possession custody power of documents sought- 1048708 Expanded test of relevance for further discovery - O24 r 5(3)

document on which party relies will rely document which could adversely affect own case or adversely affect support another partyrsquos case document which could lead to party seeking discovery to a train of enquiry resulting in his

obtaining information which may

ndash adversely affect his own case orndash adversely affect support another partyrsquos casendash =gt very wide test

- test adopted from Compagnie Financiere v Peruvian Guano (1882) 11 QBD 55 where court held that document would be relevant if it is reasonable to suppose that it contains

information which would either directly or indirectly enable the party (requiring the discovery) either to advance his own case or damage the case of his adversary

broadly worded test to ensure that all relevant evidence will be made available to ensure that a dispute can be adjudicated fairly

- greater latitude as compared with O24 r 1 but discovery must be ldquonecessary for disposing fairly of the matter or for saving costsrdquo ndash O 24 r 7 Court should inspect the documents and review facts in issue and also whether documents are confidential ndash Wallace Smith v Deloitte Haskins [1997] 1 WLR 257

ndash discretion fo court Litmus test ndash broad- Court must balance need for discovery with risk of abuse of the discovery process - O 24 r 7- Even if documents are relevant discovery will not be ordered if they are not necessary for the fair disposal

of the dispute ndash Dolling-Baker v Merret [1990] 1 WLR 1205 ndash party had dispute with inusrnac epolicy with

insurance company Party found that insurance comp had similar dispute in arbitration with another part on same type of policy Prob not relevant but even if relevant not nec for disposal fairly or for saving csots in fact aggravating costs So if can show good reason why not relevant can gt them out

- also note the need to prevent ldquofishingrdquo ie seeking discovery of documents without demonstrating their need relevance

Be narrow Msut demonstrate relevancept to paras in pleadings and say that this is directly in issue Must be clear and precise about what you want

Norman Wright amp Ors v OCBC [1992] 2 SLR 710 Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil engineering Pte Ltd [2003] 1 SLR 75

SMS Pte Ltd v Power amp Energy Pte Ltd [1996] 1 SLR 767Facts

The respondent cargo owners SMS sued the appellant carriers Energy for damage caused to their cargo which SMS alleged was due to Energyrsquos breach of contract or breach of duty as bailee or negligence Energyrsquos defence was that (a) there was no evidence of loss or damage when the good were delivered and (b) SMS failed to commence their suit within one year of the date of delivery of the goods At the hearing Energy applied for the defence to be struck out under O 24 r 16 of the Rules of the Supreme Court (RSC) as SMS failed to comply with the order for discovery The application to strike out the defence was made orally and not by summons-in-chambers The trial judge exercising his discretion allowed Energyrsquos oral application and truck out the defence and entered judgment in favour of Energy SMS appealed arguing (a) that the trial judge erred in allowing Energy to make their striking out application orally and (b) the trial judge should have struck out Energyrsquos defence because the order for discovery was not an lsquounlessrsquo order

Heldhellip10 At the hearing of the action on 22 February 1995 the respondents applied under O 24 r 16 for the defence to be struck out and judgment to be entered for the respondents This rule provides that if an order for discovery is not complied with the court may where the party in breach is a defendant strike out the defence and enter judgment for the plaintiff The application was made orally and not by way of a summons-in-chambersThis explanation does inform why no discovery had been provided by the appellants and shows there was no suppression of documents by the appellants However even if they did not have any discoverable documents the appellants could and should have filed a nil list giving such particulars as they could of what documents were once in their possession and then verified the list by affidavit This they did not do and were wrong not to Did the appellantsrsquo failure to file a nil list warrant the defence being struck out and judgment being entered It would be appropriate to do so only if such failure created a real risk that a fair trial of the action would be impossible Whether this was so is dealt with shortly23 Furthermore in deciding whether or not to strike out the defence the learned trial judge does not appear to have applied the test whether failure to file the list of documents would have rendered a fair trial of this action impossible Applying this test and bearing in mind the relevant circumstances enumerated earlier in this courtrsquos judgment the failure of the appellants to file their list of documents did not render a fair trial of this action impossible In any event such a list would have been a nil list and the respondents would have been in no better or worse position than they were before the list was filed If the appellants had filed a nil list verified on affidavit the respondents would have had to accept it unless of course they had evidence to the contrary and subject to

their right to ask for discovery of particular documents as provided by O 24 r 7 As Harman LJ said in John Walker amp Sons Ltd v Henry Ost amp Co [1970] RPC 151 at p 154 ll 45ndash48True it is that one cannot when an affidavit of documents or a list of documents is produced file an affidavit to say lsquoWell I do not believe this man has told the truth or disclosed everything he ought torsquo This affidavit is as they say conclusive24 The defence should not therefore have been struck out Instead the respondents should have been called on to prove their case The appellants had by not filing any affidavits of evidence-in-chief of witnesses elected not to adduce any evidence The trial court would have had to decide the case on the evidence available at the close of the respondentsrsquo case25 The appeal is accordingly allowed and the whole of the judgment dated 22 February 1995 is set aside This matter is sent back to the district court for a new trial Pursuant to the provisions of O 24 r 17 the appellants are ordered to file a list of documents even if it be a nil list within one month from the date of this judgment failing which their defence herein shall be deemed struck out and the respondents shall be at liberty to enter judgment against the appellants

Banque Cantonale Vaudoise v RBG Resources plc and Another [2004] 4 SLR 856- Facts- The first defendant RBG Resources plc (ldquoRBGrdquo) had engaged in transactions with various banks which

had either purchased metals from it or lent money to it on the security of metals Many of the metals were allegedly stored in warehouses operated by or on behalf of the second defendant Fujitrans (Singapore) Pte Ltd (ldquoFujitransrdquo) The plaintiff Banque Cantonale Vaudoise (ldquoBCVrdquo) was one of the banks which had transacted with RBG It had a claim against Fujitrans in respect of various groups of metals one of which was listed in Schedule 3 of its Re-Amended Statement of Claim (ldquothe Schedule 3 claimrdquo)

- An assistant registrar granted BCV summary judgment against Fujitrans Fujitrans appealed Before the appeal was heard Fujitrans filed an application for discovery of various categories of documents from BCV Consequently the appeal against summary judgment was held in abeyance An assistant registrar dismissed Fujitransrsquo discovery application save for one category of documents Fujitrans appealed against that decision as it wanted discovery and production of the remaining seven categories of documents

- Fujitransrsquo position was that it had proceeded with the discovery application first in order to show the court with certainty the information and documents which would be referred to by its banking expert Howard Palmer (ldquoPalmerrdquo) in his intended affidavit for the appeal against summary judgment Without knowing the final outcome of the discovery application and the documents to be obtained Fujitransrsquo application for leave would be speculative

- Held dismissing the appeal- Fujitransrsquo discovery application to the assistant registrar and its appeal against that decision were premature

By the time Fujitrans filed its discovery application summary judgment had already been granted to BCV for the Schedule 3 claim Accordingly the office of assistant registrar was functus officio as regards any subsequent discovery application save for claims which were not the subject of the summary judgment Therefore the discovery application could not and should not have been made to the assistant registrar at [12] [15] and [17]

- The discovery application could have been made to a judge in chambers only in the context of the pending summary judgment appeal It should have been made by way of a preliminary application in the appeal proper whereupon the question as to whether the appellant should be granted leave to adduce further evidence would have been considered first Alternatively Fujitrans could have filed the applications for discovery and leave to adduce further evidence contemporaneously and asked that they be heard together at [18] and [20]

- If it was speculative to seek leave without having discovery first it was even more speculative to seek discovery without obtaining leave first The discovery application should not have been made first as a discovery order in favour of Fujitrans would or might affect the outcome of the leave application It was for the judge hearing the leave application to decide whether to grant leave or not and if so leave could be granted subject to a successful discovery application at [22]

- As for the substantive discovery appeal before this court the main issue was the relevancy of the documents for which discovery was sought The application for discovery of the remaining seven categories of documents was in fact a fishing expedition It was obvious that Fujitransrsquo discovery application was an attempt to support its appeal against summary judgment The application was not for saving costs and was neither desirable nor necessary for disposing fairly of the cause or matter at [36] [54] and [55]

- [Observation Since Fujitrans would be appealing against this courtrsquos decision in the discovery appeal and it had not filed its leave application it should apply to a judge in chambers for leave to adduce evidence in respect of the summary judgment appeal and to include an application for leave to adduce evidence from

any successful application for discovery If the application was to be unsuccessful then Fujitrans could appeal against that decision to the Court of Appeal and that appeal should be heard together with the appeal against this courtrsquos decision Otherwise the Court of Appeal would have to give a decision which was not in the correct sequence at [24]

- Alternatively BCV could apply to a judge in chambers for a declaration that Fujitrans should not be permitted to adduce further evidence so that any dissatisfied party could thereafter appeal to the Court of Appeal which could then deal with that appeal and the appeal against this courtrsquos decision in the correct sequence at [25]]

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710Held dismissing both appeals(1) In their defence of fair comment in the 1987 action the first and third defendants were not able to particularize the steps OCBC failed to take to ensure that confidential matters were not publicly disclosed and sought to interrogate the bank on what steps the bank had or had not taken This was not permissible The judicial commissioner was right in holding that their interrogatories were fishing(2) The categories of documents the defendants sought in their application for a further and better list of documents in the 1987 action were extremely wide and virtually none of them bore any relevance to the issues raised by the defences The aim of this application was no different from that of the application for leave to serve the interrogatories It was an attempt to mount a comprehensive discovery with the hope of finding something useful for their case(3) The sting of the libel in the 1988 action was the imputation of recklessness irresponsibility and mischievousness on Wrightrsquos part in writing the letter to the newspaper The material issue turned on the state of Wrightrsquos mind at the time he wrote the letter and not whether what he wrote was true or false The classes of documents in respect of which Wright sought discovery had no bearing on that issue They were substantially internal documents of OCBC of which he had absolutely no knowledge They were also not necessary for disposing fairly of the cause or matter or for saving costs The extreme width and lack of specificity of the classes of documents sought also indicated that Wright was lsquofishingrsquo for material to make good his assertions of OCBCrsquos breach of confidentiality(4) The two actions were inextricably intertwined and arose out of the same set of facts To allow Wright discovery of these categories of documents would in effect enable Wright to circumvent Chao Jrsquos order in the 1987 action That was not permissible(5) The application for further and better particulars of the defence in the 1988 action was substantially framed in the form of interrogatories and covered the same ground as the application for discovery Wright was accordingly not entitled to the particulars sought(6) Both the appeals were against the exercise of judicial discretion in relation to interlocutory issues In the absence of clear error of law or principle the appellate court should not interfere No such error of law or principle had been made out

o Can blank out parts of docs where private and confidential ndash there is law to support this Court to make sure that no irrelevcant parts Gene capital v bankerrsquos trust

First conseq therefore =gt other party can apply for discovery

13 Other consequences of failure to comply with discovery order

1048708 O 24 r 16(a) Action dismissed or defence struck out and judgment entered - O 24 r 16(1)(b) Committal of party failing to comply - O 24 r 16(2)(c) Committal of solicitor who fails to notify client of the order for discovery - O 24 r 16(4) - distinct from other

duties of solicitor in relation to discovery(d) inability to rely on undisclosed documents save with leave - O 24 r 16(5)

Main Principles ndash analysis applies throughout civ pro course any type of order ndash these apply- bull Court will usually make an lsquounless orderrsquo in the first instance Ie court will say since you havenrsquot

complied give you x time failing which your claim or defence is struck out- As person who applied for unless order ndash most pple then apply to court for order that action is struck off

o Silly because this allows pther party to plead oral extension of time- bull Disobedience of an unless order is likely to amount to contumelious behaviour (ie contempt)

- bull In order to avoid the dire consequences onus is on defaulter to show that o 1 there was no intention to ignore the peremptory order and o 2 that the failure to obey was due to extraneous circumstances Syed Mohamed Abdul Muthaliff v

Arjan Bhisham Chotrani [1999] 1 SLR 750o but court also said not off the hook necessarily ndash in face of neg competence or sheer indolence Ie

at heart of it need to show that had made positive efforts Must be sufficient efforts (prej to other side ndash secondary stage)

- bull Once an unless order is breached the opposing party can either apply for a final order (see above) or write to the Registry with a suitable draft order (this is correct procedure) Changhe International Investments Pte Ltd v BIL [2004] 4 SLR 449

- bull An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a contract Wiltopps (Asia) Ltd v Drew amp Napier [2000] 3 SLR 244

o applied for extension of time unless order obtained kike consent operates ilke a contract ndash cannot set it aside Can only set aside by filing fresh application pleading undue influence etc most have fresh proceedings so never consent to an unless order

Wiltopps (Asia) Ltd v Drew amp Napier (sued as a firm) and Another [2000] 3 SLR 244FactsThe present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their conduct of the proceedings After the writ of summons was filed in May 1993 there was considerable procrastination by the plaintiffs in proceeding with the action In October 1997 the court ordered affidavits of evidence-in-chief to be filed and exchanged within two months The order listed the witnesses the plaintiffs intended to call After various applications for extension of time for filing the affidavits the defendantsrsquo solicitors set a deadline by which the exchange of affidavits was to take place There was no exchange by the plaintiffs by the deadline and the defendantsrsquo solicitors applied for an order that unless the plaintiffs filed and served on the defendants the affidavits of evidence-in-chief of their witnesses within three days the plaintiffsrsquo action would be dismissed At the hearing of the application the plaintiffsrsquo solicitors offered to accept the unless order provided that they were given seven days instead of three This was agreed to by the defendantsrsquo solicitors and a consent order was made which required the plaintiffs to make the necessary exchange within seven days and in default the plaintiffsrsquo action would be dismissed with costs without further orderThe plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date The plaintiffsrsquo solicitors then applied for an extension of time to comply with the unless order The application was however later withdrawn at the hearing Subsequently the defendantsrsquo solicitors applied for and obtained a default judgment dismissing the plaintiffsrsquo action on the basis of their non-compliance with the unless order The plaintiffsrsquo solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar The plaintiffs appealed against the decisionHeld dismissing the appeal(1) The words ldquoby consentrdquo in the unless order could either evidence a real contract between the parties or could evidence an order made without obligation by the parties In the present case the words in the unless order gave effect to the contract between the parties The order had been made on the basis of the plaintiffs solicitorsrsquo offer to consent if they were given seven days instead of three and which offer was accepted by the defendantsrsquo solicitors There was clearly consideration flowing from the defendants to the plaintiffs(2) The parties were bound by the unless order that was made with their consent If the plaintiffs failed to comply with the terms of the unless order they would be able to avoid the default judgment only if the unless order itself was set aside A judgment or order by consent was binding until it was set aside and fresh proceedings must be commenced to set aside a consent order(3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the affidavit of one of their witnesses by the prescribed deadline The application for extension of time of the unless order was withdrawn and thus the unless order remained in effect The plaintiffsrsquo failure to comply with the unless order was due to their own default and not because they were prevented by the defendantsrsquo solicitors(4) Once the default occurred the unless order operated to dismiss the action ldquowithout further orderrdquo There was no question of setting aside the default judgment which was a consequence of the unless order and the

subsequent default Even if the court had the discretion to interfere with the default judgment the plaintiffsrsquo contumacious and contumelious conduct in this case did not justify such exercise in their favourPer curiamOn the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it To hold otherwise would dilute the utility of such consent orders

Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449FactsThe appellantsplaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar The defendantsrsquo counsel made an application by summons-in-chambers to perfect the unless order Plaintiffsrsquo counsel attended the hearing on 8 March 2000 at which the assistant registrar dismissed the plaintiffsrsquo claim Plaintiffsrsquo counsel did not appealLater the plaintiffs engaged new solicitors who made an application that the Registrar set aside the order of 8 March 2000 At the hearing on 14 June 2000 defendantsrsquo counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar The plaintiffsrsquo rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order The assistant registrar after hearing the point on jurisdiction dismissed the plaintiffsrsquo application without hearing the merits The plaintiffs appealedHeld dismissing the appeal(1) The order of 8 March 2000 by the assistant registrar was right Procedurally the assistant registrar in this application could not entertain the plaintiffsrsquo application and could not normally vary another assistant registrarrsquos order as he lacked jurisdiction to do so(2) An unless order generally took effect without further order However the order had to be perfected in the absence of specific rules relating to perfection(3) There were two paths to perfecting such an order The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with If the draft order was approved and it was faired and extracted the unless order was perfected(4) The second was by the party availing itself of the general application procedure of the court to achieve the same end(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach The plaintiffs could not re-litigate the same matter save by way of appeal which they did not file

The Bonito [2001] 3 SLR 32

FactsFollowing a collision between the appellantsrsquo vessel Bonito and the respondentsrsquo vessel Ah Lam II the respondents commenced an admiralty action in rem against the appellants Subsequently the parties reached a settlement under which unless the quantum of damages was agreed there was to be a reference to the registrar for damages to be assessed At a pre-trial conference on 27 March 1997 counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum once the discovery of documents was completed and counsel for the respondents said that the prospects of a settlement were good Nevertheless the assistant registrar made an ldquounless orderrdquo to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997 failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed failing which the action was to stand dismissed with costsSubsequently the parties required more time for the discovery of documents and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages At the hearings on 18 July 1997 and 3 September 1997 orders were made extending the time to 19 October 1997 and 30 November 1997 respectively In allowing the extensions the assistant registrar did not expressly make a default provision in either of the ordersIn March 1999 the appellantsrsquo solicitors informed the respondentsrsquo solicitors that the action had been dismissed In April 2000 the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so In May 2000 the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000 Subsequently

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

and adopted by Lord Diplock in Harman`s case [1982] 1 All ER 532 at p 536 [1983] 1 AC 280 at p 302 Thus for instance to use a document obtained on discovery in one action as the foundation for a claim in a different and wholly unrelated proceeding would be a clear breach of the implied undertaking (see Riddick v Thames Board Mills Ltd [1977]3 All ER 677 [1977] QB 881) It has recently been held by Scott J in Sybron Corp v Barclays Bank plc [1985] Ch 229 and this must in my judgment clearly be right that the implied undertaking applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind But the implied undertais one which is given to the court ordering discovery and it is clear and is not disputed by the appellants that it can in appropriate circumstances be released or modified by the court (Emphasis added)

- I must not of course pre-empt the Court of Appeal in the 1987 proceedings but as that judgment now stands and having regard to the allegations and counter-allegation of malice and what I discern to be the intensity with which these two proceedings are being conducted I would not be comfortable in relying on the implied undertaking which it is conceded exists that some information gleaned from these documents and stored in the mind would not be used u nwittingly in the conduct of the 1987 proceedings

11 limitation to discovery ndash order 24 rule 13

12 Application for specific discovery can be made against party

- If not satisfied with discovery made ndash can take out this order- 1048708 O 24 r 5-Order for discovery of particular documents (O 24 r 5)5 mdash(1) Subject to Rule 7 the Court may at any time on the application of any party to a cause or matter make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is or has at any time been in his possession custody or power and if not then in his possession custody or power when he parted with it and what has become of it (2) An order may be made against a party under this Rule notwithstanding that the party may already have made or been required to make a list of documents or an affidavit under Rule 1 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions (a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and (c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case (4) An order under this Rule shall not be made in any cause or matter in respect of any party before an order under Rule 1 has first been obtained in respect of that party unless in the opinion of the Court the order is necessary or desirable

- 1048708 Procedure SIC supported by affidavit affidavit will state belief of deponent that party from whom discovery is sought has or had

possession custody power of documents sought- 1048708 Expanded test of relevance for further discovery - O24 r 5(3)

document on which party relies will rely document which could adversely affect own case or adversely affect support another partyrsquos case document which could lead to party seeking discovery to a train of enquiry resulting in his

obtaining information which may

ndash adversely affect his own case orndash adversely affect support another partyrsquos casendash =gt very wide test

- test adopted from Compagnie Financiere v Peruvian Guano (1882) 11 QBD 55 where court held that document would be relevant if it is reasonable to suppose that it contains

information which would either directly or indirectly enable the party (requiring the discovery) either to advance his own case or damage the case of his adversary

broadly worded test to ensure that all relevant evidence will be made available to ensure that a dispute can be adjudicated fairly

- greater latitude as compared with O24 r 1 but discovery must be ldquonecessary for disposing fairly of the matter or for saving costsrdquo ndash O 24 r 7 Court should inspect the documents and review facts in issue and also whether documents are confidential ndash Wallace Smith v Deloitte Haskins [1997] 1 WLR 257

ndash discretion fo court Litmus test ndash broad- Court must balance need for discovery with risk of abuse of the discovery process - O 24 r 7- Even if documents are relevant discovery will not be ordered if they are not necessary for the fair disposal

of the dispute ndash Dolling-Baker v Merret [1990] 1 WLR 1205 ndash party had dispute with inusrnac epolicy with

insurance company Party found that insurance comp had similar dispute in arbitration with another part on same type of policy Prob not relevant but even if relevant not nec for disposal fairly or for saving csots in fact aggravating costs So if can show good reason why not relevant can gt them out

- also note the need to prevent ldquofishingrdquo ie seeking discovery of documents without demonstrating their need relevance

Be narrow Msut demonstrate relevancept to paras in pleadings and say that this is directly in issue Must be clear and precise about what you want

Norman Wright amp Ors v OCBC [1992] 2 SLR 710 Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil engineering Pte Ltd [2003] 1 SLR 75

SMS Pte Ltd v Power amp Energy Pte Ltd [1996] 1 SLR 767Facts

The respondent cargo owners SMS sued the appellant carriers Energy for damage caused to their cargo which SMS alleged was due to Energyrsquos breach of contract or breach of duty as bailee or negligence Energyrsquos defence was that (a) there was no evidence of loss or damage when the good were delivered and (b) SMS failed to commence their suit within one year of the date of delivery of the goods At the hearing Energy applied for the defence to be struck out under O 24 r 16 of the Rules of the Supreme Court (RSC) as SMS failed to comply with the order for discovery The application to strike out the defence was made orally and not by summons-in-chambers The trial judge exercising his discretion allowed Energyrsquos oral application and truck out the defence and entered judgment in favour of Energy SMS appealed arguing (a) that the trial judge erred in allowing Energy to make their striking out application orally and (b) the trial judge should have struck out Energyrsquos defence because the order for discovery was not an lsquounlessrsquo order

Heldhellip10 At the hearing of the action on 22 February 1995 the respondents applied under O 24 r 16 for the defence to be struck out and judgment to be entered for the respondents This rule provides that if an order for discovery is not complied with the court may where the party in breach is a defendant strike out the defence and enter judgment for the plaintiff The application was made orally and not by way of a summons-in-chambersThis explanation does inform why no discovery had been provided by the appellants and shows there was no suppression of documents by the appellants However even if they did not have any discoverable documents the appellants could and should have filed a nil list giving such particulars as they could of what documents were once in their possession and then verified the list by affidavit This they did not do and were wrong not to Did the appellantsrsquo failure to file a nil list warrant the defence being struck out and judgment being entered It would be appropriate to do so only if such failure created a real risk that a fair trial of the action would be impossible Whether this was so is dealt with shortly23 Furthermore in deciding whether or not to strike out the defence the learned trial judge does not appear to have applied the test whether failure to file the list of documents would have rendered a fair trial of this action impossible Applying this test and bearing in mind the relevant circumstances enumerated earlier in this courtrsquos judgment the failure of the appellants to file their list of documents did not render a fair trial of this action impossible In any event such a list would have been a nil list and the respondents would have been in no better or worse position than they were before the list was filed If the appellants had filed a nil list verified on affidavit the respondents would have had to accept it unless of course they had evidence to the contrary and subject to

their right to ask for discovery of particular documents as provided by O 24 r 7 As Harman LJ said in John Walker amp Sons Ltd v Henry Ost amp Co [1970] RPC 151 at p 154 ll 45ndash48True it is that one cannot when an affidavit of documents or a list of documents is produced file an affidavit to say lsquoWell I do not believe this man has told the truth or disclosed everything he ought torsquo This affidavit is as they say conclusive24 The defence should not therefore have been struck out Instead the respondents should have been called on to prove their case The appellants had by not filing any affidavits of evidence-in-chief of witnesses elected not to adduce any evidence The trial court would have had to decide the case on the evidence available at the close of the respondentsrsquo case25 The appeal is accordingly allowed and the whole of the judgment dated 22 February 1995 is set aside This matter is sent back to the district court for a new trial Pursuant to the provisions of O 24 r 17 the appellants are ordered to file a list of documents even if it be a nil list within one month from the date of this judgment failing which their defence herein shall be deemed struck out and the respondents shall be at liberty to enter judgment against the appellants

Banque Cantonale Vaudoise v RBG Resources plc and Another [2004] 4 SLR 856- Facts- The first defendant RBG Resources plc (ldquoRBGrdquo) had engaged in transactions with various banks which

had either purchased metals from it or lent money to it on the security of metals Many of the metals were allegedly stored in warehouses operated by or on behalf of the second defendant Fujitrans (Singapore) Pte Ltd (ldquoFujitransrdquo) The plaintiff Banque Cantonale Vaudoise (ldquoBCVrdquo) was one of the banks which had transacted with RBG It had a claim against Fujitrans in respect of various groups of metals one of which was listed in Schedule 3 of its Re-Amended Statement of Claim (ldquothe Schedule 3 claimrdquo)

- An assistant registrar granted BCV summary judgment against Fujitrans Fujitrans appealed Before the appeal was heard Fujitrans filed an application for discovery of various categories of documents from BCV Consequently the appeal against summary judgment was held in abeyance An assistant registrar dismissed Fujitransrsquo discovery application save for one category of documents Fujitrans appealed against that decision as it wanted discovery and production of the remaining seven categories of documents

- Fujitransrsquo position was that it had proceeded with the discovery application first in order to show the court with certainty the information and documents which would be referred to by its banking expert Howard Palmer (ldquoPalmerrdquo) in his intended affidavit for the appeal against summary judgment Without knowing the final outcome of the discovery application and the documents to be obtained Fujitransrsquo application for leave would be speculative

- Held dismissing the appeal- Fujitransrsquo discovery application to the assistant registrar and its appeal against that decision were premature

By the time Fujitrans filed its discovery application summary judgment had already been granted to BCV for the Schedule 3 claim Accordingly the office of assistant registrar was functus officio as regards any subsequent discovery application save for claims which were not the subject of the summary judgment Therefore the discovery application could not and should not have been made to the assistant registrar at [12] [15] and [17]

- The discovery application could have been made to a judge in chambers only in the context of the pending summary judgment appeal It should have been made by way of a preliminary application in the appeal proper whereupon the question as to whether the appellant should be granted leave to adduce further evidence would have been considered first Alternatively Fujitrans could have filed the applications for discovery and leave to adduce further evidence contemporaneously and asked that they be heard together at [18] and [20]

- If it was speculative to seek leave without having discovery first it was even more speculative to seek discovery without obtaining leave first The discovery application should not have been made first as a discovery order in favour of Fujitrans would or might affect the outcome of the leave application It was for the judge hearing the leave application to decide whether to grant leave or not and if so leave could be granted subject to a successful discovery application at [22]

- As for the substantive discovery appeal before this court the main issue was the relevancy of the documents for which discovery was sought The application for discovery of the remaining seven categories of documents was in fact a fishing expedition It was obvious that Fujitransrsquo discovery application was an attempt to support its appeal against summary judgment The application was not for saving costs and was neither desirable nor necessary for disposing fairly of the cause or matter at [36] [54] and [55]

- [Observation Since Fujitrans would be appealing against this courtrsquos decision in the discovery appeal and it had not filed its leave application it should apply to a judge in chambers for leave to adduce evidence in respect of the summary judgment appeal and to include an application for leave to adduce evidence from

any successful application for discovery If the application was to be unsuccessful then Fujitrans could appeal against that decision to the Court of Appeal and that appeal should be heard together with the appeal against this courtrsquos decision Otherwise the Court of Appeal would have to give a decision which was not in the correct sequence at [24]

- Alternatively BCV could apply to a judge in chambers for a declaration that Fujitrans should not be permitted to adduce further evidence so that any dissatisfied party could thereafter appeal to the Court of Appeal which could then deal with that appeal and the appeal against this courtrsquos decision in the correct sequence at [25]]

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710Held dismissing both appeals(1) In their defence of fair comment in the 1987 action the first and third defendants were not able to particularize the steps OCBC failed to take to ensure that confidential matters were not publicly disclosed and sought to interrogate the bank on what steps the bank had or had not taken This was not permissible The judicial commissioner was right in holding that their interrogatories were fishing(2) The categories of documents the defendants sought in their application for a further and better list of documents in the 1987 action were extremely wide and virtually none of them bore any relevance to the issues raised by the defences The aim of this application was no different from that of the application for leave to serve the interrogatories It was an attempt to mount a comprehensive discovery with the hope of finding something useful for their case(3) The sting of the libel in the 1988 action was the imputation of recklessness irresponsibility and mischievousness on Wrightrsquos part in writing the letter to the newspaper The material issue turned on the state of Wrightrsquos mind at the time he wrote the letter and not whether what he wrote was true or false The classes of documents in respect of which Wright sought discovery had no bearing on that issue They were substantially internal documents of OCBC of which he had absolutely no knowledge They were also not necessary for disposing fairly of the cause or matter or for saving costs The extreme width and lack of specificity of the classes of documents sought also indicated that Wright was lsquofishingrsquo for material to make good his assertions of OCBCrsquos breach of confidentiality(4) The two actions were inextricably intertwined and arose out of the same set of facts To allow Wright discovery of these categories of documents would in effect enable Wright to circumvent Chao Jrsquos order in the 1987 action That was not permissible(5) The application for further and better particulars of the defence in the 1988 action was substantially framed in the form of interrogatories and covered the same ground as the application for discovery Wright was accordingly not entitled to the particulars sought(6) Both the appeals were against the exercise of judicial discretion in relation to interlocutory issues In the absence of clear error of law or principle the appellate court should not interfere No such error of law or principle had been made out

o Can blank out parts of docs where private and confidential ndash there is law to support this Court to make sure that no irrelevcant parts Gene capital v bankerrsquos trust

First conseq therefore =gt other party can apply for discovery

13 Other consequences of failure to comply with discovery order

1048708 O 24 r 16(a) Action dismissed or defence struck out and judgment entered - O 24 r 16(1)(b) Committal of party failing to comply - O 24 r 16(2)(c) Committal of solicitor who fails to notify client of the order for discovery - O 24 r 16(4) - distinct from other

duties of solicitor in relation to discovery(d) inability to rely on undisclosed documents save with leave - O 24 r 16(5)

Main Principles ndash analysis applies throughout civ pro course any type of order ndash these apply- bull Court will usually make an lsquounless orderrsquo in the first instance Ie court will say since you havenrsquot

complied give you x time failing which your claim or defence is struck out- As person who applied for unless order ndash most pple then apply to court for order that action is struck off

o Silly because this allows pther party to plead oral extension of time- bull Disobedience of an unless order is likely to amount to contumelious behaviour (ie contempt)

- bull In order to avoid the dire consequences onus is on defaulter to show that o 1 there was no intention to ignore the peremptory order and o 2 that the failure to obey was due to extraneous circumstances Syed Mohamed Abdul Muthaliff v

Arjan Bhisham Chotrani [1999] 1 SLR 750o but court also said not off the hook necessarily ndash in face of neg competence or sheer indolence Ie

at heart of it need to show that had made positive efforts Must be sufficient efforts (prej to other side ndash secondary stage)

- bull Once an unless order is breached the opposing party can either apply for a final order (see above) or write to the Registry with a suitable draft order (this is correct procedure) Changhe International Investments Pte Ltd v BIL [2004] 4 SLR 449

- bull An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a contract Wiltopps (Asia) Ltd v Drew amp Napier [2000] 3 SLR 244

o applied for extension of time unless order obtained kike consent operates ilke a contract ndash cannot set it aside Can only set aside by filing fresh application pleading undue influence etc most have fresh proceedings so never consent to an unless order

Wiltopps (Asia) Ltd v Drew amp Napier (sued as a firm) and Another [2000] 3 SLR 244FactsThe present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their conduct of the proceedings After the writ of summons was filed in May 1993 there was considerable procrastination by the plaintiffs in proceeding with the action In October 1997 the court ordered affidavits of evidence-in-chief to be filed and exchanged within two months The order listed the witnesses the plaintiffs intended to call After various applications for extension of time for filing the affidavits the defendantsrsquo solicitors set a deadline by which the exchange of affidavits was to take place There was no exchange by the plaintiffs by the deadline and the defendantsrsquo solicitors applied for an order that unless the plaintiffs filed and served on the defendants the affidavits of evidence-in-chief of their witnesses within three days the plaintiffsrsquo action would be dismissed At the hearing of the application the plaintiffsrsquo solicitors offered to accept the unless order provided that they were given seven days instead of three This was agreed to by the defendantsrsquo solicitors and a consent order was made which required the plaintiffs to make the necessary exchange within seven days and in default the plaintiffsrsquo action would be dismissed with costs without further orderThe plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date The plaintiffsrsquo solicitors then applied for an extension of time to comply with the unless order The application was however later withdrawn at the hearing Subsequently the defendantsrsquo solicitors applied for and obtained a default judgment dismissing the plaintiffsrsquo action on the basis of their non-compliance with the unless order The plaintiffsrsquo solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar The plaintiffs appealed against the decisionHeld dismissing the appeal(1) The words ldquoby consentrdquo in the unless order could either evidence a real contract between the parties or could evidence an order made without obligation by the parties In the present case the words in the unless order gave effect to the contract between the parties The order had been made on the basis of the plaintiffs solicitorsrsquo offer to consent if they were given seven days instead of three and which offer was accepted by the defendantsrsquo solicitors There was clearly consideration flowing from the defendants to the plaintiffs(2) The parties were bound by the unless order that was made with their consent If the plaintiffs failed to comply with the terms of the unless order they would be able to avoid the default judgment only if the unless order itself was set aside A judgment or order by consent was binding until it was set aside and fresh proceedings must be commenced to set aside a consent order(3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the affidavit of one of their witnesses by the prescribed deadline The application for extension of time of the unless order was withdrawn and thus the unless order remained in effect The plaintiffsrsquo failure to comply with the unless order was due to their own default and not because they were prevented by the defendantsrsquo solicitors(4) Once the default occurred the unless order operated to dismiss the action ldquowithout further orderrdquo There was no question of setting aside the default judgment which was a consequence of the unless order and the

subsequent default Even if the court had the discretion to interfere with the default judgment the plaintiffsrsquo contumacious and contumelious conduct in this case did not justify such exercise in their favourPer curiamOn the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it To hold otherwise would dilute the utility of such consent orders

Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449FactsThe appellantsplaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar The defendantsrsquo counsel made an application by summons-in-chambers to perfect the unless order Plaintiffsrsquo counsel attended the hearing on 8 March 2000 at which the assistant registrar dismissed the plaintiffsrsquo claim Plaintiffsrsquo counsel did not appealLater the plaintiffs engaged new solicitors who made an application that the Registrar set aside the order of 8 March 2000 At the hearing on 14 June 2000 defendantsrsquo counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar The plaintiffsrsquo rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order The assistant registrar after hearing the point on jurisdiction dismissed the plaintiffsrsquo application without hearing the merits The plaintiffs appealedHeld dismissing the appeal(1) The order of 8 March 2000 by the assistant registrar was right Procedurally the assistant registrar in this application could not entertain the plaintiffsrsquo application and could not normally vary another assistant registrarrsquos order as he lacked jurisdiction to do so(2) An unless order generally took effect without further order However the order had to be perfected in the absence of specific rules relating to perfection(3) There were two paths to perfecting such an order The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with If the draft order was approved and it was faired and extracted the unless order was perfected(4) The second was by the party availing itself of the general application procedure of the court to achieve the same end(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach The plaintiffs could not re-litigate the same matter save by way of appeal which they did not file

The Bonito [2001] 3 SLR 32

FactsFollowing a collision between the appellantsrsquo vessel Bonito and the respondentsrsquo vessel Ah Lam II the respondents commenced an admiralty action in rem against the appellants Subsequently the parties reached a settlement under which unless the quantum of damages was agreed there was to be a reference to the registrar for damages to be assessed At a pre-trial conference on 27 March 1997 counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum once the discovery of documents was completed and counsel for the respondents said that the prospects of a settlement were good Nevertheless the assistant registrar made an ldquounless orderrdquo to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997 failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed failing which the action was to stand dismissed with costsSubsequently the parties required more time for the discovery of documents and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages At the hearings on 18 July 1997 and 3 September 1997 orders were made extending the time to 19 October 1997 and 30 November 1997 respectively In allowing the extensions the assistant registrar did not expressly make a default provision in either of the ordersIn March 1999 the appellantsrsquo solicitors informed the respondentsrsquo solicitors that the action had been dismissed In April 2000 the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so In May 2000 the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000 Subsequently

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

ndash adversely affect his own case orndash adversely affect support another partyrsquos casendash =gt very wide test

- test adopted from Compagnie Financiere v Peruvian Guano (1882) 11 QBD 55 where court held that document would be relevant if it is reasonable to suppose that it contains

information which would either directly or indirectly enable the party (requiring the discovery) either to advance his own case or damage the case of his adversary

broadly worded test to ensure that all relevant evidence will be made available to ensure that a dispute can be adjudicated fairly

- greater latitude as compared with O24 r 1 but discovery must be ldquonecessary for disposing fairly of the matter or for saving costsrdquo ndash O 24 r 7 Court should inspect the documents and review facts in issue and also whether documents are confidential ndash Wallace Smith v Deloitte Haskins [1997] 1 WLR 257

ndash discretion fo court Litmus test ndash broad- Court must balance need for discovery with risk of abuse of the discovery process - O 24 r 7- Even if documents are relevant discovery will not be ordered if they are not necessary for the fair disposal

of the dispute ndash Dolling-Baker v Merret [1990] 1 WLR 1205 ndash party had dispute with inusrnac epolicy with

insurance company Party found that insurance comp had similar dispute in arbitration with another part on same type of policy Prob not relevant but even if relevant not nec for disposal fairly or for saving csots in fact aggravating costs So if can show good reason why not relevant can gt them out

- also note the need to prevent ldquofishingrdquo ie seeking discovery of documents without demonstrating their need relevance

Be narrow Msut demonstrate relevancept to paras in pleadings and say that this is directly in issue Must be clear and precise about what you want

Norman Wright amp Ors v OCBC [1992] 2 SLR 710 Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil engineering Pte Ltd [2003] 1 SLR 75

SMS Pte Ltd v Power amp Energy Pte Ltd [1996] 1 SLR 767Facts

The respondent cargo owners SMS sued the appellant carriers Energy for damage caused to their cargo which SMS alleged was due to Energyrsquos breach of contract or breach of duty as bailee or negligence Energyrsquos defence was that (a) there was no evidence of loss or damage when the good were delivered and (b) SMS failed to commence their suit within one year of the date of delivery of the goods At the hearing Energy applied for the defence to be struck out under O 24 r 16 of the Rules of the Supreme Court (RSC) as SMS failed to comply with the order for discovery The application to strike out the defence was made orally and not by summons-in-chambers The trial judge exercising his discretion allowed Energyrsquos oral application and truck out the defence and entered judgment in favour of Energy SMS appealed arguing (a) that the trial judge erred in allowing Energy to make their striking out application orally and (b) the trial judge should have struck out Energyrsquos defence because the order for discovery was not an lsquounlessrsquo order

Heldhellip10 At the hearing of the action on 22 February 1995 the respondents applied under O 24 r 16 for the defence to be struck out and judgment to be entered for the respondents This rule provides that if an order for discovery is not complied with the court may where the party in breach is a defendant strike out the defence and enter judgment for the plaintiff The application was made orally and not by way of a summons-in-chambersThis explanation does inform why no discovery had been provided by the appellants and shows there was no suppression of documents by the appellants However even if they did not have any discoverable documents the appellants could and should have filed a nil list giving such particulars as they could of what documents were once in their possession and then verified the list by affidavit This they did not do and were wrong not to Did the appellantsrsquo failure to file a nil list warrant the defence being struck out and judgment being entered It would be appropriate to do so only if such failure created a real risk that a fair trial of the action would be impossible Whether this was so is dealt with shortly23 Furthermore in deciding whether or not to strike out the defence the learned trial judge does not appear to have applied the test whether failure to file the list of documents would have rendered a fair trial of this action impossible Applying this test and bearing in mind the relevant circumstances enumerated earlier in this courtrsquos judgment the failure of the appellants to file their list of documents did not render a fair trial of this action impossible In any event such a list would have been a nil list and the respondents would have been in no better or worse position than they were before the list was filed If the appellants had filed a nil list verified on affidavit the respondents would have had to accept it unless of course they had evidence to the contrary and subject to

their right to ask for discovery of particular documents as provided by O 24 r 7 As Harman LJ said in John Walker amp Sons Ltd v Henry Ost amp Co [1970] RPC 151 at p 154 ll 45ndash48True it is that one cannot when an affidavit of documents or a list of documents is produced file an affidavit to say lsquoWell I do not believe this man has told the truth or disclosed everything he ought torsquo This affidavit is as they say conclusive24 The defence should not therefore have been struck out Instead the respondents should have been called on to prove their case The appellants had by not filing any affidavits of evidence-in-chief of witnesses elected not to adduce any evidence The trial court would have had to decide the case on the evidence available at the close of the respondentsrsquo case25 The appeal is accordingly allowed and the whole of the judgment dated 22 February 1995 is set aside This matter is sent back to the district court for a new trial Pursuant to the provisions of O 24 r 17 the appellants are ordered to file a list of documents even if it be a nil list within one month from the date of this judgment failing which their defence herein shall be deemed struck out and the respondents shall be at liberty to enter judgment against the appellants

Banque Cantonale Vaudoise v RBG Resources plc and Another [2004] 4 SLR 856- Facts- The first defendant RBG Resources plc (ldquoRBGrdquo) had engaged in transactions with various banks which

had either purchased metals from it or lent money to it on the security of metals Many of the metals were allegedly stored in warehouses operated by or on behalf of the second defendant Fujitrans (Singapore) Pte Ltd (ldquoFujitransrdquo) The plaintiff Banque Cantonale Vaudoise (ldquoBCVrdquo) was one of the banks which had transacted with RBG It had a claim against Fujitrans in respect of various groups of metals one of which was listed in Schedule 3 of its Re-Amended Statement of Claim (ldquothe Schedule 3 claimrdquo)

- An assistant registrar granted BCV summary judgment against Fujitrans Fujitrans appealed Before the appeal was heard Fujitrans filed an application for discovery of various categories of documents from BCV Consequently the appeal against summary judgment was held in abeyance An assistant registrar dismissed Fujitransrsquo discovery application save for one category of documents Fujitrans appealed against that decision as it wanted discovery and production of the remaining seven categories of documents

- Fujitransrsquo position was that it had proceeded with the discovery application first in order to show the court with certainty the information and documents which would be referred to by its banking expert Howard Palmer (ldquoPalmerrdquo) in his intended affidavit for the appeal against summary judgment Without knowing the final outcome of the discovery application and the documents to be obtained Fujitransrsquo application for leave would be speculative

- Held dismissing the appeal- Fujitransrsquo discovery application to the assistant registrar and its appeal against that decision were premature

By the time Fujitrans filed its discovery application summary judgment had already been granted to BCV for the Schedule 3 claim Accordingly the office of assistant registrar was functus officio as regards any subsequent discovery application save for claims which were not the subject of the summary judgment Therefore the discovery application could not and should not have been made to the assistant registrar at [12] [15] and [17]

- The discovery application could have been made to a judge in chambers only in the context of the pending summary judgment appeal It should have been made by way of a preliminary application in the appeal proper whereupon the question as to whether the appellant should be granted leave to adduce further evidence would have been considered first Alternatively Fujitrans could have filed the applications for discovery and leave to adduce further evidence contemporaneously and asked that they be heard together at [18] and [20]

- If it was speculative to seek leave without having discovery first it was even more speculative to seek discovery without obtaining leave first The discovery application should not have been made first as a discovery order in favour of Fujitrans would or might affect the outcome of the leave application It was for the judge hearing the leave application to decide whether to grant leave or not and if so leave could be granted subject to a successful discovery application at [22]

- As for the substantive discovery appeal before this court the main issue was the relevancy of the documents for which discovery was sought The application for discovery of the remaining seven categories of documents was in fact a fishing expedition It was obvious that Fujitransrsquo discovery application was an attempt to support its appeal against summary judgment The application was not for saving costs and was neither desirable nor necessary for disposing fairly of the cause or matter at [36] [54] and [55]

- [Observation Since Fujitrans would be appealing against this courtrsquos decision in the discovery appeal and it had not filed its leave application it should apply to a judge in chambers for leave to adduce evidence in respect of the summary judgment appeal and to include an application for leave to adduce evidence from

any successful application for discovery If the application was to be unsuccessful then Fujitrans could appeal against that decision to the Court of Appeal and that appeal should be heard together with the appeal against this courtrsquos decision Otherwise the Court of Appeal would have to give a decision which was not in the correct sequence at [24]

- Alternatively BCV could apply to a judge in chambers for a declaration that Fujitrans should not be permitted to adduce further evidence so that any dissatisfied party could thereafter appeal to the Court of Appeal which could then deal with that appeal and the appeal against this courtrsquos decision in the correct sequence at [25]]

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710Held dismissing both appeals(1) In their defence of fair comment in the 1987 action the first and third defendants were not able to particularize the steps OCBC failed to take to ensure that confidential matters were not publicly disclosed and sought to interrogate the bank on what steps the bank had or had not taken This was not permissible The judicial commissioner was right in holding that their interrogatories were fishing(2) The categories of documents the defendants sought in their application for a further and better list of documents in the 1987 action were extremely wide and virtually none of them bore any relevance to the issues raised by the defences The aim of this application was no different from that of the application for leave to serve the interrogatories It was an attempt to mount a comprehensive discovery with the hope of finding something useful for their case(3) The sting of the libel in the 1988 action was the imputation of recklessness irresponsibility and mischievousness on Wrightrsquos part in writing the letter to the newspaper The material issue turned on the state of Wrightrsquos mind at the time he wrote the letter and not whether what he wrote was true or false The classes of documents in respect of which Wright sought discovery had no bearing on that issue They were substantially internal documents of OCBC of which he had absolutely no knowledge They were also not necessary for disposing fairly of the cause or matter or for saving costs The extreme width and lack of specificity of the classes of documents sought also indicated that Wright was lsquofishingrsquo for material to make good his assertions of OCBCrsquos breach of confidentiality(4) The two actions were inextricably intertwined and arose out of the same set of facts To allow Wright discovery of these categories of documents would in effect enable Wright to circumvent Chao Jrsquos order in the 1987 action That was not permissible(5) The application for further and better particulars of the defence in the 1988 action was substantially framed in the form of interrogatories and covered the same ground as the application for discovery Wright was accordingly not entitled to the particulars sought(6) Both the appeals were against the exercise of judicial discretion in relation to interlocutory issues In the absence of clear error of law or principle the appellate court should not interfere No such error of law or principle had been made out

o Can blank out parts of docs where private and confidential ndash there is law to support this Court to make sure that no irrelevcant parts Gene capital v bankerrsquos trust

First conseq therefore =gt other party can apply for discovery

13 Other consequences of failure to comply with discovery order

1048708 O 24 r 16(a) Action dismissed or defence struck out and judgment entered - O 24 r 16(1)(b) Committal of party failing to comply - O 24 r 16(2)(c) Committal of solicitor who fails to notify client of the order for discovery - O 24 r 16(4) - distinct from other

duties of solicitor in relation to discovery(d) inability to rely on undisclosed documents save with leave - O 24 r 16(5)

Main Principles ndash analysis applies throughout civ pro course any type of order ndash these apply- bull Court will usually make an lsquounless orderrsquo in the first instance Ie court will say since you havenrsquot

complied give you x time failing which your claim or defence is struck out- As person who applied for unless order ndash most pple then apply to court for order that action is struck off

o Silly because this allows pther party to plead oral extension of time- bull Disobedience of an unless order is likely to amount to contumelious behaviour (ie contempt)

- bull In order to avoid the dire consequences onus is on defaulter to show that o 1 there was no intention to ignore the peremptory order and o 2 that the failure to obey was due to extraneous circumstances Syed Mohamed Abdul Muthaliff v

Arjan Bhisham Chotrani [1999] 1 SLR 750o but court also said not off the hook necessarily ndash in face of neg competence or sheer indolence Ie

at heart of it need to show that had made positive efforts Must be sufficient efforts (prej to other side ndash secondary stage)

- bull Once an unless order is breached the opposing party can either apply for a final order (see above) or write to the Registry with a suitable draft order (this is correct procedure) Changhe International Investments Pte Ltd v BIL [2004] 4 SLR 449

- bull An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a contract Wiltopps (Asia) Ltd v Drew amp Napier [2000] 3 SLR 244

o applied for extension of time unless order obtained kike consent operates ilke a contract ndash cannot set it aside Can only set aside by filing fresh application pleading undue influence etc most have fresh proceedings so never consent to an unless order

Wiltopps (Asia) Ltd v Drew amp Napier (sued as a firm) and Another [2000] 3 SLR 244FactsThe present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their conduct of the proceedings After the writ of summons was filed in May 1993 there was considerable procrastination by the plaintiffs in proceeding with the action In October 1997 the court ordered affidavits of evidence-in-chief to be filed and exchanged within two months The order listed the witnesses the plaintiffs intended to call After various applications for extension of time for filing the affidavits the defendantsrsquo solicitors set a deadline by which the exchange of affidavits was to take place There was no exchange by the plaintiffs by the deadline and the defendantsrsquo solicitors applied for an order that unless the plaintiffs filed and served on the defendants the affidavits of evidence-in-chief of their witnesses within three days the plaintiffsrsquo action would be dismissed At the hearing of the application the plaintiffsrsquo solicitors offered to accept the unless order provided that they were given seven days instead of three This was agreed to by the defendantsrsquo solicitors and a consent order was made which required the plaintiffs to make the necessary exchange within seven days and in default the plaintiffsrsquo action would be dismissed with costs without further orderThe plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date The plaintiffsrsquo solicitors then applied for an extension of time to comply with the unless order The application was however later withdrawn at the hearing Subsequently the defendantsrsquo solicitors applied for and obtained a default judgment dismissing the plaintiffsrsquo action on the basis of their non-compliance with the unless order The plaintiffsrsquo solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar The plaintiffs appealed against the decisionHeld dismissing the appeal(1) The words ldquoby consentrdquo in the unless order could either evidence a real contract between the parties or could evidence an order made without obligation by the parties In the present case the words in the unless order gave effect to the contract between the parties The order had been made on the basis of the plaintiffs solicitorsrsquo offer to consent if they were given seven days instead of three and which offer was accepted by the defendantsrsquo solicitors There was clearly consideration flowing from the defendants to the plaintiffs(2) The parties were bound by the unless order that was made with their consent If the plaintiffs failed to comply with the terms of the unless order they would be able to avoid the default judgment only if the unless order itself was set aside A judgment or order by consent was binding until it was set aside and fresh proceedings must be commenced to set aside a consent order(3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the affidavit of one of their witnesses by the prescribed deadline The application for extension of time of the unless order was withdrawn and thus the unless order remained in effect The plaintiffsrsquo failure to comply with the unless order was due to their own default and not because they were prevented by the defendantsrsquo solicitors(4) Once the default occurred the unless order operated to dismiss the action ldquowithout further orderrdquo There was no question of setting aside the default judgment which was a consequence of the unless order and the

subsequent default Even if the court had the discretion to interfere with the default judgment the plaintiffsrsquo contumacious and contumelious conduct in this case did not justify such exercise in their favourPer curiamOn the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it To hold otherwise would dilute the utility of such consent orders

Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449FactsThe appellantsplaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar The defendantsrsquo counsel made an application by summons-in-chambers to perfect the unless order Plaintiffsrsquo counsel attended the hearing on 8 March 2000 at which the assistant registrar dismissed the plaintiffsrsquo claim Plaintiffsrsquo counsel did not appealLater the plaintiffs engaged new solicitors who made an application that the Registrar set aside the order of 8 March 2000 At the hearing on 14 June 2000 defendantsrsquo counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar The plaintiffsrsquo rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order The assistant registrar after hearing the point on jurisdiction dismissed the plaintiffsrsquo application without hearing the merits The plaintiffs appealedHeld dismissing the appeal(1) The order of 8 March 2000 by the assistant registrar was right Procedurally the assistant registrar in this application could not entertain the plaintiffsrsquo application and could not normally vary another assistant registrarrsquos order as he lacked jurisdiction to do so(2) An unless order generally took effect without further order However the order had to be perfected in the absence of specific rules relating to perfection(3) There were two paths to perfecting such an order The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with If the draft order was approved and it was faired and extracted the unless order was perfected(4) The second was by the party availing itself of the general application procedure of the court to achieve the same end(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach The plaintiffs could not re-litigate the same matter save by way of appeal which they did not file

The Bonito [2001] 3 SLR 32

FactsFollowing a collision between the appellantsrsquo vessel Bonito and the respondentsrsquo vessel Ah Lam II the respondents commenced an admiralty action in rem against the appellants Subsequently the parties reached a settlement under which unless the quantum of damages was agreed there was to be a reference to the registrar for damages to be assessed At a pre-trial conference on 27 March 1997 counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum once the discovery of documents was completed and counsel for the respondents said that the prospects of a settlement were good Nevertheless the assistant registrar made an ldquounless orderrdquo to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997 failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed failing which the action was to stand dismissed with costsSubsequently the parties required more time for the discovery of documents and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages At the hearings on 18 July 1997 and 3 September 1997 orders were made extending the time to 19 October 1997 and 30 November 1997 respectively In allowing the extensions the assistant registrar did not expressly make a default provision in either of the ordersIn March 1999 the appellantsrsquo solicitors informed the respondentsrsquo solicitors that the action had been dismissed In April 2000 the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so In May 2000 the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000 Subsequently

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

their right to ask for discovery of particular documents as provided by O 24 r 7 As Harman LJ said in John Walker amp Sons Ltd v Henry Ost amp Co [1970] RPC 151 at p 154 ll 45ndash48True it is that one cannot when an affidavit of documents or a list of documents is produced file an affidavit to say lsquoWell I do not believe this man has told the truth or disclosed everything he ought torsquo This affidavit is as they say conclusive24 The defence should not therefore have been struck out Instead the respondents should have been called on to prove their case The appellants had by not filing any affidavits of evidence-in-chief of witnesses elected not to adduce any evidence The trial court would have had to decide the case on the evidence available at the close of the respondentsrsquo case25 The appeal is accordingly allowed and the whole of the judgment dated 22 February 1995 is set aside This matter is sent back to the district court for a new trial Pursuant to the provisions of O 24 r 17 the appellants are ordered to file a list of documents even if it be a nil list within one month from the date of this judgment failing which their defence herein shall be deemed struck out and the respondents shall be at liberty to enter judgment against the appellants

Banque Cantonale Vaudoise v RBG Resources plc and Another [2004] 4 SLR 856- Facts- The first defendant RBG Resources plc (ldquoRBGrdquo) had engaged in transactions with various banks which

had either purchased metals from it or lent money to it on the security of metals Many of the metals were allegedly stored in warehouses operated by or on behalf of the second defendant Fujitrans (Singapore) Pte Ltd (ldquoFujitransrdquo) The plaintiff Banque Cantonale Vaudoise (ldquoBCVrdquo) was one of the banks which had transacted with RBG It had a claim against Fujitrans in respect of various groups of metals one of which was listed in Schedule 3 of its Re-Amended Statement of Claim (ldquothe Schedule 3 claimrdquo)

- An assistant registrar granted BCV summary judgment against Fujitrans Fujitrans appealed Before the appeal was heard Fujitrans filed an application for discovery of various categories of documents from BCV Consequently the appeal against summary judgment was held in abeyance An assistant registrar dismissed Fujitransrsquo discovery application save for one category of documents Fujitrans appealed against that decision as it wanted discovery and production of the remaining seven categories of documents

- Fujitransrsquo position was that it had proceeded with the discovery application first in order to show the court with certainty the information and documents which would be referred to by its banking expert Howard Palmer (ldquoPalmerrdquo) in his intended affidavit for the appeal against summary judgment Without knowing the final outcome of the discovery application and the documents to be obtained Fujitransrsquo application for leave would be speculative

- Held dismissing the appeal- Fujitransrsquo discovery application to the assistant registrar and its appeal against that decision were premature

By the time Fujitrans filed its discovery application summary judgment had already been granted to BCV for the Schedule 3 claim Accordingly the office of assistant registrar was functus officio as regards any subsequent discovery application save for claims which were not the subject of the summary judgment Therefore the discovery application could not and should not have been made to the assistant registrar at [12] [15] and [17]

- The discovery application could have been made to a judge in chambers only in the context of the pending summary judgment appeal It should have been made by way of a preliminary application in the appeal proper whereupon the question as to whether the appellant should be granted leave to adduce further evidence would have been considered first Alternatively Fujitrans could have filed the applications for discovery and leave to adduce further evidence contemporaneously and asked that they be heard together at [18] and [20]

- If it was speculative to seek leave without having discovery first it was even more speculative to seek discovery without obtaining leave first The discovery application should not have been made first as a discovery order in favour of Fujitrans would or might affect the outcome of the leave application It was for the judge hearing the leave application to decide whether to grant leave or not and if so leave could be granted subject to a successful discovery application at [22]

- As for the substantive discovery appeal before this court the main issue was the relevancy of the documents for which discovery was sought The application for discovery of the remaining seven categories of documents was in fact a fishing expedition It was obvious that Fujitransrsquo discovery application was an attempt to support its appeal against summary judgment The application was not for saving costs and was neither desirable nor necessary for disposing fairly of the cause or matter at [36] [54] and [55]

- [Observation Since Fujitrans would be appealing against this courtrsquos decision in the discovery appeal and it had not filed its leave application it should apply to a judge in chambers for leave to adduce evidence in respect of the summary judgment appeal and to include an application for leave to adduce evidence from

any successful application for discovery If the application was to be unsuccessful then Fujitrans could appeal against that decision to the Court of Appeal and that appeal should be heard together with the appeal against this courtrsquos decision Otherwise the Court of Appeal would have to give a decision which was not in the correct sequence at [24]

- Alternatively BCV could apply to a judge in chambers for a declaration that Fujitrans should not be permitted to adduce further evidence so that any dissatisfied party could thereafter appeal to the Court of Appeal which could then deal with that appeal and the appeal against this courtrsquos decision in the correct sequence at [25]]

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710Held dismissing both appeals(1) In their defence of fair comment in the 1987 action the first and third defendants were not able to particularize the steps OCBC failed to take to ensure that confidential matters were not publicly disclosed and sought to interrogate the bank on what steps the bank had or had not taken This was not permissible The judicial commissioner was right in holding that their interrogatories were fishing(2) The categories of documents the defendants sought in their application for a further and better list of documents in the 1987 action were extremely wide and virtually none of them bore any relevance to the issues raised by the defences The aim of this application was no different from that of the application for leave to serve the interrogatories It was an attempt to mount a comprehensive discovery with the hope of finding something useful for their case(3) The sting of the libel in the 1988 action was the imputation of recklessness irresponsibility and mischievousness on Wrightrsquos part in writing the letter to the newspaper The material issue turned on the state of Wrightrsquos mind at the time he wrote the letter and not whether what he wrote was true or false The classes of documents in respect of which Wright sought discovery had no bearing on that issue They were substantially internal documents of OCBC of which he had absolutely no knowledge They were also not necessary for disposing fairly of the cause or matter or for saving costs The extreme width and lack of specificity of the classes of documents sought also indicated that Wright was lsquofishingrsquo for material to make good his assertions of OCBCrsquos breach of confidentiality(4) The two actions were inextricably intertwined and arose out of the same set of facts To allow Wright discovery of these categories of documents would in effect enable Wright to circumvent Chao Jrsquos order in the 1987 action That was not permissible(5) The application for further and better particulars of the defence in the 1988 action was substantially framed in the form of interrogatories and covered the same ground as the application for discovery Wright was accordingly not entitled to the particulars sought(6) Both the appeals were against the exercise of judicial discretion in relation to interlocutory issues In the absence of clear error of law or principle the appellate court should not interfere No such error of law or principle had been made out

o Can blank out parts of docs where private and confidential ndash there is law to support this Court to make sure that no irrelevcant parts Gene capital v bankerrsquos trust

First conseq therefore =gt other party can apply for discovery

13 Other consequences of failure to comply with discovery order

1048708 O 24 r 16(a) Action dismissed or defence struck out and judgment entered - O 24 r 16(1)(b) Committal of party failing to comply - O 24 r 16(2)(c) Committal of solicitor who fails to notify client of the order for discovery - O 24 r 16(4) - distinct from other

duties of solicitor in relation to discovery(d) inability to rely on undisclosed documents save with leave - O 24 r 16(5)

Main Principles ndash analysis applies throughout civ pro course any type of order ndash these apply- bull Court will usually make an lsquounless orderrsquo in the first instance Ie court will say since you havenrsquot

complied give you x time failing which your claim or defence is struck out- As person who applied for unless order ndash most pple then apply to court for order that action is struck off

o Silly because this allows pther party to plead oral extension of time- bull Disobedience of an unless order is likely to amount to contumelious behaviour (ie contempt)

- bull In order to avoid the dire consequences onus is on defaulter to show that o 1 there was no intention to ignore the peremptory order and o 2 that the failure to obey was due to extraneous circumstances Syed Mohamed Abdul Muthaliff v

Arjan Bhisham Chotrani [1999] 1 SLR 750o but court also said not off the hook necessarily ndash in face of neg competence or sheer indolence Ie

at heart of it need to show that had made positive efforts Must be sufficient efforts (prej to other side ndash secondary stage)

- bull Once an unless order is breached the opposing party can either apply for a final order (see above) or write to the Registry with a suitable draft order (this is correct procedure) Changhe International Investments Pte Ltd v BIL [2004] 4 SLR 449

- bull An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a contract Wiltopps (Asia) Ltd v Drew amp Napier [2000] 3 SLR 244

o applied for extension of time unless order obtained kike consent operates ilke a contract ndash cannot set it aside Can only set aside by filing fresh application pleading undue influence etc most have fresh proceedings so never consent to an unless order

Wiltopps (Asia) Ltd v Drew amp Napier (sued as a firm) and Another [2000] 3 SLR 244FactsThe present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their conduct of the proceedings After the writ of summons was filed in May 1993 there was considerable procrastination by the plaintiffs in proceeding with the action In October 1997 the court ordered affidavits of evidence-in-chief to be filed and exchanged within two months The order listed the witnesses the plaintiffs intended to call After various applications for extension of time for filing the affidavits the defendantsrsquo solicitors set a deadline by which the exchange of affidavits was to take place There was no exchange by the plaintiffs by the deadline and the defendantsrsquo solicitors applied for an order that unless the plaintiffs filed and served on the defendants the affidavits of evidence-in-chief of their witnesses within three days the plaintiffsrsquo action would be dismissed At the hearing of the application the plaintiffsrsquo solicitors offered to accept the unless order provided that they were given seven days instead of three This was agreed to by the defendantsrsquo solicitors and a consent order was made which required the plaintiffs to make the necessary exchange within seven days and in default the plaintiffsrsquo action would be dismissed with costs without further orderThe plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date The plaintiffsrsquo solicitors then applied for an extension of time to comply with the unless order The application was however later withdrawn at the hearing Subsequently the defendantsrsquo solicitors applied for and obtained a default judgment dismissing the plaintiffsrsquo action on the basis of their non-compliance with the unless order The plaintiffsrsquo solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar The plaintiffs appealed against the decisionHeld dismissing the appeal(1) The words ldquoby consentrdquo in the unless order could either evidence a real contract between the parties or could evidence an order made without obligation by the parties In the present case the words in the unless order gave effect to the contract between the parties The order had been made on the basis of the plaintiffs solicitorsrsquo offer to consent if they were given seven days instead of three and which offer was accepted by the defendantsrsquo solicitors There was clearly consideration flowing from the defendants to the plaintiffs(2) The parties were bound by the unless order that was made with their consent If the plaintiffs failed to comply with the terms of the unless order they would be able to avoid the default judgment only if the unless order itself was set aside A judgment or order by consent was binding until it was set aside and fresh proceedings must be commenced to set aside a consent order(3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the affidavit of one of their witnesses by the prescribed deadline The application for extension of time of the unless order was withdrawn and thus the unless order remained in effect The plaintiffsrsquo failure to comply with the unless order was due to their own default and not because they were prevented by the defendantsrsquo solicitors(4) Once the default occurred the unless order operated to dismiss the action ldquowithout further orderrdquo There was no question of setting aside the default judgment which was a consequence of the unless order and the

subsequent default Even if the court had the discretion to interfere with the default judgment the plaintiffsrsquo contumacious and contumelious conduct in this case did not justify such exercise in their favourPer curiamOn the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it To hold otherwise would dilute the utility of such consent orders

Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449FactsThe appellantsplaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar The defendantsrsquo counsel made an application by summons-in-chambers to perfect the unless order Plaintiffsrsquo counsel attended the hearing on 8 March 2000 at which the assistant registrar dismissed the plaintiffsrsquo claim Plaintiffsrsquo counsel did not appealLater the plaintiffs engaged new solicitors who made an application that the Registrar set aside the order of 8 March 2000 At the hearing on 14 June 2000 defendantsrsquo counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar The plaintiffsrsquo rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order The assistant registrar after hearing the point on jurisdiction dismissed the plaintiffsrsquo application without hearing the merits The plaintiffs appealedHeld dismissing the appeal(1) The order of 8 March 2000 by the assistant registrar was right Procedurally the assistant registrar in this application could not entertain the plaintiffsrsquo application and could not normally vary another assistant registrarrsquos order as he lacked jurisdiction to do so(2) An unless order generally took effect without further order However the order had to be perfected in the absence of specific rules relating to perfection(3) There were two paths to perfecting such an order The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with If the draft order was approved and it was faired and extracted the unless order was perfected(4) The second was by the party availing itself of the general application procedure of the court to achieve the same end(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach The plaintiffs could not re-litigate the same matter save by way of appeal which they did not file

The Bonito [2001] 3 SLR 32

FactsFollowing a collision between the appellantsrsquo vessel Bonito and the respondentsrsquo vessel Ah Lam II the respondents commenced an admiralty action in rem against the appellants Subsequently the parties reached a settlement under which unless the quantum of damages was agreed there was to be a reference to the registrar for damages to be assessed At a pre-trial conference on 27 March 1997 counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum once the discovery of documents was completed and counsel for the respondents said that the prospects of a settlement were good Nevertheless the assistant registrar made an ldquounless orderrdquo to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997 failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed failing which the action was to stand dismissed with costsSubsequently the parties required more time for the discovery of documents and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages At the hearings on 18 July 1997 and 3 September 1997 orders were made extending the time to 19 October 1997 and 30 November 1997 respectively In allowing the extensions the assistant registrar did not expressly make a default provision in either of the ordersIn March 1999 the appellantsrsquo solicitors informed the respondentsrsquo solicitors that the action had been dismissed In April 2000 the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so In May 2000 the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000 Subsequently

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

any successful application for discovery If the application was to be unsuccessful then Fujitrans could appeal against that decision to the Court of Appeal and that appeal should be heard together with the appeal against this courtrsquos decision Otherwise the Court of Appeal would have to give a decision which was not in the correct sequence at [24]

- Alternatively BCV could apply to a judge in chambers for a declaration that Fujitrans should not be permitted to adduce further evidence so that any dissatisfied party could thereafter appeal to the Court of Appeal which could then deal with that appeal and the appeal against this courtrsquos decision in the correct sequence at [25]]

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710Held dismissing both appeals(1) In their defence of fair comment in the 1987 action the first and third defendants were not able to particularize the steps OCBC failed to take to ensure that confidential matters were not publicly disclosed and sought to interrogate the bank on what steps the bank had or had not taken This was not permissible The judicial commissioner was right in holding that their interrogatories were fishing(2) The categories of documents the defendants sought in their application for a further and better list of documents in the 1987 action were extremely wide and virtually none of them bore any relevance to the issues raised by the defences The aim of this application was no different from that of the application for leave to serve the interrogatories It was an attempt to mount a comprehensive discovery with the hope of finding something useful for their case(3) The sting of the libel in the 1988 action was the imputation of recklessness irresponsibility and mischievousness on Wrightrsquos part in writing the letter to the newspaper The material issue turned on the state of Wrightrsquos mind at the time he wrote the letter and not whether what he wrote was true or false The classes of documents in respect of which Wright sought discovery had no bearing on that issue They were substantially internal documents of OCBC of which he had absolutely no knowledge They were also not necessary for disposing fairly of the cause or matter or for saving costs The extreme width and lack of specificity of the classes of documents sought also indicated that Wright was lsquofishingrsquo for material to make good his assertions of OCBCrsquos breach of confidentiality(4) The two actions were inextricably intertwined and arose out of the same set of facts To allow Wright discovery of these categories of documents would in effect enable Wright to circumvent Chao Jrsquos order in the 1987 action That was not permissible(5) The application for further and better particulars of the defence in the 1988 action was substantially framed in the form of interrogatories and covered the same ground as the application for discovery Wright was accordingly not entitled to the particulars sought(6) Both the appeals were against the exercise of judicial discretion in relation to interlocutory issues In the absence of clear error of law or principle the appellate court should not interfere No such error of law or principle had been made out

o Can blank out parts of docs where private and confidential ndash there is law to support this Court to make sure that no irrelevcant parts Gene capital v bankerrsquos trust

First conseq therefore =gt other party can apply for discovery

13 Other consequences of failure to comply with discovery order

1048708 O 24 r 16(a) Action dismissed or defence struck out and judgment entered - O 24 r 16(1)(b) Committal of party failing to comply - O 24 r 16(2)(c) Committal of solicitor who fails to notify client of the order for discovery - O 24 r 16(4) - distinct from other

duties of solicitor in relation to discovery(d) inability to rely on undisclosed documents save with leave - O 24 r 16(5)

Main Principles ndash analysis applies throughout civ pro course any type of order ndash these apply- bull Court will usually make an lsquounless orderrsquo in the first instance Ie court will say since you havenrsquot

complied give you x time failing which your claim or defence is struck out- As person who applied for unless order ndash most pple then apply to court for order that action is struck off

o Silly because this allows pther party to plead oral extension of time- bull Disobedience of an unless order is likely to amount to contumelious behaviour (ie contempt)

- bull In order to avoid the dire consequences onus is on defaulter to show that o 1 there was no intention to ignore the peremptory order and o 2 that the failure to obey was due to extraneous circumstances Syed Mohamed Abdul Muthaliff v

Arjan Bhisham Chotrani [1999] 1 SLR 750o but court also said not off the hook necessarily ndash in face of neg competence or sheer indolence Ie

at heart of it need to show that had made positive efforts Must be sufficient efforts (prej to other side ndash secondary stage)

- bull Once an unless order is breached the opposing party can either apply for a final order (see above) or write to the Registry with a suitable draft order (this is correct procedure) Changhe International Investments Pte Ltd v BIL [2004] 4 SLR 449

- bull An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a contract Wiltopps (Asia) Ltd v Drew amp Napier [2000] 3 SLR 244

o applied for extension of time unless order obtained kike consent operates ilke a contract ndash cannot set it aside Can only set aside by filing fresh application pleading undue influence etc most have fresh proceedings so never consent to an unless order

Wiltopps (Asia) Ltd v Drew amp Napier (sued as a firm) and Another [2000] 3 SLR 244FactsThe present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their conduct of the proceedings After the writ of summons was filed in May 1993 there was considerable procrastination by the plaintiffs in proceeding with the action In October 1997 the court ordered affidavits of evidence-in-chief to be filed and exchanged within two months The order listed the witnesses the plaintiffs intended to call After various applications for extension of time for filing the affidavits the defendantsrsquo solicitors set a deadline by which the exchange of affidavits was to take place There was no exchange by the plaintiffs by the deadline and the defendantsrsquo solicitors applied for an order that unless the plaintiffs filed and served on the defendants the affidavits of evidence-in-chief of their witnesses within three days the plaintiffsrsquo action would be dismissed At the hearing of the application the plaintiffsrsquo solicitors offered to accept the unless order provided that they were given seven days instead of three This was agreed to by the defendantsrsquo solicitors and a consent order was made which required the plaintiffs to make the necessary exchange within seven days and in default the plaintiffsrsquo action would be dismissed with costs without further orderThe plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date The plaintiffsrsquo solicitors then applied for an extension of time to comply with the unless order The application was however later withdrawn at the hearing Subsequently the defendantsrsquo solicitors applied for and obtained a default judgment dismissing the plaintiffsrsquo action on the basis of their non-compliance with the unless order The plaintiffsrsquo solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar The plaintiffs appealed against the decisionHeld dismissing the appeal(1) The words ldquoby consentrdquo in the unless order could either evidence a real contract between the parties or could evidence an order made without obligation by the parties In the present case the words in the unless order gave effect to the contract between the parties The order had been made on the basis of the plaintiffs solicitorsrsquo offer to consent if they were given seven days instead of three and which offer was accepted by the defendantsrsquo solicitors There was clearly consideration flowing from the defendants to the plaintiffs(2) The parties were bound by the unless order that was made with their consent If the plaintiffs failed to comply with the terms of the unless order they would be able to avoid the default judgment only if the unless order itself was set aside A judgment or order by consent was binding until it was set aside and fresh proceedings must be commenced to set aside a consent order(3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the affidavit of one of their witnesses by the prescribed deadline The application for extension of time of the unless order was withdrawn and thus the unless order remained in effect The plaintiffsrsquo failure to comply with the unless order was due to their own default and not because they were prevented by the defendantsrsquo solicitors(4) Once the default occurred the unless order operated to dismiss the action ldquowithout further orderrdquo There was no question of setting aside the default judgment which was a consequence of the unless order and the

subsequent default Even if the court had the discretion to interfere with the default judgment the plaintiffsrsquo contumacious and contumelious conduct in this case did not justify such exercise in their favourPer curiamOn the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it To hold otherwise would dilute the utility of such consent orders

Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449FactsThe appellantsplaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar The defendantsrsquo counsel made an application by summons-in-chambers to perfect the unless order Plaintiffsrsquo counsel attended the hearing on 8 March 2000 at which the assistant registrar dismissed the plaintiffsrsquo claim Plaintiffsrsquo counsel did not appealLater the plaintiffs engaged new solicitors who made an application that the Registrar set aside the order of 8 March 2000 At the hearing on 14 June 2000 defendantsrsquo counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar The plaintiffsrsquo rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order The assistant registrar after hearing the point on jurisdiction dismissed the plaintiffsrsquo application without hearing the merits The plaintiffs appealedHeld dismissing the appeal(1) The order of 8 March 2000 by the assistant registrar was right Procedurally the assistant registrar in this application could not entertain the plaintiffsrsquo application and could not normally vary another assistant registrarrsquos order as he lacked jurisdiction to do so(2) An unless order generally took effect without further order However the order had to be perfected in the absence of specific rules relating to perfection(3) There were two paths to perfecting such an order The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with If the draft order was approved and it was faired and extracted the unless order was perfected(4) The second was by the party availing itself of the general application procedure of the court to achieve the same end(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach The plaintiffs could not re-litigate the same matter save by way of appeal which they did not file

The Bonito [2001] 3 SLR 32

FactsFollowing a collision between the appellantsrsquo vessel Bonito and the respondentsrsquo vessel Ah Lam II the respondents commenced an admiralty action in rem against the appellants Subsequently the parties reached a settlement under which unless the quantum of damages was agreed there was to be a reference to the registrar for damages to be assessed At a pre-trial conference on 27 March 1997 counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum once the discovery of documents was completed and counsel for the respondents said that the prospects of a settlement were good Nevertheless the assistant registrar made an ldquounless orderrdquo to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997 failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed failing which the action was to stand dismissed with costsSubsequently the parties required more time for the discovery of documents and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages At the hearings on 18 July 1997 and 3 September 1997 orders were made extending the time to 19 October 1997 and 30 November 1997 respectively In allowing the extensions the assistant registrar did not expressly make a default provision in either of the ordersIn March 1999 the appellantsrsquo solicitors informed the respondentsrsquo solicitors that the action had been dismissed In April 2000 the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so In May 2000 the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000 Subsequently

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

- bull In order to avoid the dire consequences onus is on defaulter to show that o 1 there was no intention to ignore the peremptory order and o 2 that the failure to obey was due to extraneous circumstances Syed Mohamed Abdul Muthaliff v

Arjan Bhisham Chotrani [1999] 1 SLR 750o but court also said not off the hook necessarily ndash in face of neg competence or sheer indolence Ie

at heart of it need to show that had made positive efforts Must be sufficient efforts (prej to other side ndash secondary stage)

- bull Once an unless order is breached the opposing party can either apply for a final order (see above) or write to the Registry with a suitable draft order (this is correct procedure) Changhe International Investments Pte Ltd v BIL [2004] 4 SLR 449

- bull An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a contract Wiltopps (Asia) Ltd v Drew amp Napier [2000] 3 SLR 244

o applied for extension of time unless order obtained kike consent operates ilke a contract ndash cannot set it aside Can only set aside by filing fresh application pleading undue influence etc most have fresh proceedings so never consent to an unless order

Wiltopps (Asia) Ltd v Drew amp Napier (sued as a firm) and Another [2000] 3 SLR 244FactsThe present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their conduct of the proceedings After the writ of summons was filed in May 1993 there was considerable procrastination by the plaintiffs in proceeding with the action In October 1997 the court ordered affidavits of evidence-in-chief to be filed and exchanged within two months The order listed the witnesses the plaintiffs intended to call After various applications for extension of time for filing the affidavits the defendantsrsquo solicitors set a deadline by which the exchange of affidavits was to take place There was no exchange by the plaintiffs by the deadline and the defendantsrsquo solicitors applied for an order that unless the plaintiffs filed and served on the defendants the affidavits of evidence-in-chief of their witnesses within three days the plaintiffsrsquo action would be dismissed At the hearing of the application the plaintiffsrsquo solicitors offered to accept the unless order provided that they were given seven days instead of three This was agreed to by the defendantsrsquo solicitors and a consent order was made which required the plaintiffs to make the necessary exchange within seven days and in default the plaintiffsrsquo action would be dismissed with costs without further orderThe plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date The plaintiffsrsquo solicitors then applied for an extension of time to comply with the unless order The application was however later withdrawn at the hearing Subsequently the defendantsrsquo solicitors applied for and obtained a default judgment dismissing the plaintiffsrsquo action on the basis of their non-compliance with the unless order The plaintiffsrsquo solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar The plaintiffs appealed against the decisionHeld dismissing the appeal(1) The words ldquoby consentrdquo in the unless order could either evidence a real contract between the parties or could evidence an order made without obligation by the parties In the present case the words in the unless order gave effect to the contract between the parties The order had been made on the basis of the plaintiffs solicitorsrsquo offer to consent if they were given seven days instead of three and which offer was accepted by the defendantsrsquo solicitors There was clearly consideration flowing from the defendants to the plaintiffs(2) The parties were bound by the unless order that was made with their consent If the plaintiffs failed to comply with the terms of the unless order they would be able to avoid the default judgment only if the unless order itself was set aside A judgment or order by consent was binding until it was set aside and fresh proceedings must be commenced to set aside a consent order(3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the affidavit of one of their witnesses by the prescribed deadline The application for extension of time of the unless order was withdrawn and thus the unless order remained in effect The plaintiffsrsquo failure to comply with the unless order was due to their own default and not because they were prevented by the defendantsrsquo solicitors(4) Once the default occurred the unless order operated to dismiss the action ldquowithout further orderrdquo There was no question of setting aside the default judgment which was a consequence of the unless order and the

subsequent default Even if the court had the discretion to interfere with the default judgment the plaintiffsrsquo contumacious and contumelious conduct in this case did not justify such exercise in their favourPer curiamOn the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it To hold otherwise would dilute the utility of such consent orders

Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449FactsThe appellantsplaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar The defendantsrsquo counsel made an application by summons-in-chambers to perfect the unless order Plaintiffsrsquo counsel attended the hearing on 8 March 2000 at which the assistant registrar dismissed the plaintiffsrsquo claim Plaintiffsrsquo counsel did not appealLater the plaintiffs engaged new solicitors who made an application that the Registrar set aside the order of 8 March 2000 At the hearing on 14 June 2000 defendantsrsquo counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar The plaintiffsrsquo rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order The assistant registrar after hearing the point on jurisdiction dismissed the plaintiffsrsquo application without hearing the merits The plaintiffs appealedHeld dismissing the appeal(1) The order of 8 March 2000 by the assistant registrar was right Procedurally the assistant registrar in this application could not entertain the plaintiffsrsquo application and could not normally vary another assistant registrarrsquos order as he lacked jurisdiction to do so(2) An unless order generally took effect without further order However the order had to be perfected in the absence of specific rules relating to perfection(3) There were two paths to perfecting such an order The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with If the draft order was approved and it was faired and extracted the unless order was perfected(4) The second was by the party availing itself of the general application procedure of the court to achieve the same end(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach The plaintiffs could not re-litigate the same matter save by way of appeal which they did not file

The Bonito [2001] 3 SLR 32

FactsFollowing a collision between the appellantsrsquo vessel Bonito and the respondentsrsquo vessel Ah Lam II the respondents commenced an admiralty action in rem against the appellants Subsequently the parties reached a settlement under which unless the quantum of damages was agreed there was to be a reference to the registrar for damages to be assessed At a pre-trial conference on 27 March 1997 counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum once the discovery of documents was completed and counsel for the respondents said that the prospects of a settlement were good Nevertheless the assistant registrar made an ldquounless orderrdquo to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997 failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed failing which the action was to stand dismissed with costsSubsequently the parties required more time for the discovery of documents and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages At the hearings on 18 July 1997 and 3 September 1997 orders were made extending the time to 19 October 1997 and 30 November 1997 respectively In allowing the extensions the assistant registrar did not expressly make a default provision in either of the ordersIn March 1999 the appellantsrsquo solicitors informed the respondentsrsquo solicitors that the action had been dismissed In April 2000 the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so In May 2000 the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000 Subsequently

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

subsequent default Even if the court had the discretion to interfere with the default judgment the plaintiffsrsquo contumacious and contumelious conduct in this case did not justify such exercise in their favourPer curiamOn the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it To hold otherwise would dilute the utility of such consent orders

Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449FactsThe appellantsplaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar The defendantsrsquo counsel made an application by summons-in-chambers to perfect the unless order Plaintiffsrsquo counsel attended the hearing on 8 March 2000 at which the assistant registrar dismissed the plaintiffsrsquo claim Plaintiffsrsquo counsel did not appealLater the plaintiffs engaged new solicitors who made an application that the Registrar set aside the order of 8 March 2000 At the hearing on 14 June 2000 defendantsrsquo counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar The plaintiffsrsquo rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order The assistant registrar after hearing the point on jurisdiction dismissed the plaintiffsrsquo application without hearing the merits The plaintiffs appealedHeld dismissing the appeal(1) The order of 8 March 2000 by the assistant registrar was right Procedurally the assistant registrar in this application could not entertain the plaintiffsrsquo application and could not normally vary another assistant registrarrsquos order as he lacked jurisdiction to do so(2) An unless order generally took effect without further order However the order had to be perfected in the absence of specific rules relating to perfection(3) There were two paths to perfecting such an order The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with If the draft order was approved and it was faired and extracted the unless order was perfected(4) The second was by the party availing itself of the general application procedure of the court to achieve the same end(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach The plaintiffs could not re-litigate the same matter save by way of appeal which they did not file

The Bonito [2001] 3 SLR 32

FactsFollowing a collision between the appellantsrsquo vessel Bonito and the respondentsrsquo vessel Ah Lam II the respondents commenced an admiralty action in rem against the appellants Subsequently the parties reached a settlement under which unless the quantum of damages was agreed there was to be a reference to the registrar for damages to be assessed At a pre-trial conference on 27 March 1997 counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum once the discovery of documents was completed and counsel for the respondents said that the prospects of a settlement were good Nevertheless the assistant registrar made an ldquounless orderrdquo to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997 failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed failing which the action was to stand dismissed with costsSubsequently the parties required more time for the discovery of documents and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages At the hearings on 18 July 1997 and 3 September 1997 orders were made extending the time to 19 October 1997 and 30 November 1997 respectively In allowing the extensions the assistant registrar did not expressly make a default provision in either of the ordersIn March 1999 the appellantsrsquo solicitors informed the respondentsrsquo solicitors that the action had been dismissed In April 2000 the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so In May 2000 the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000 Subsequently

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

the respondents applied for an extension of time to file and serve the reference to registrar This application was heard and dismissed by the assistant registrar The respondentsrsquo appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC who granted the extension of time and dismissed the striking out applicationThe appellants then appealed to the Court of Appeal They contended that (1) when the respondents failed to file the reference to the registrar by 30 November 1997 the ldquounless orderrdquo made on 27 March 1997 came into operation and by reason thereof the action was dismissed and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extensionHeld dismissing the appeals(1) The courts adopted a very strict approach in considering and dealing with an ldquounless orderrdquo If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997 then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it because the consequence of non-compliance of such provision was extremely serious and far reaching To all intents and purposes the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders which contained no default provision Thus the action was not dismissed as of 9 June 2000 when the respondents applied for an extension of time to file the reference to the registrar for assessment(2) There had been some considerable delay on the part of the respondents to apply for the extension of time Nevertheless the judge exercised his discretion properly in granting the extension of time On an overall assessment of what justice required to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which even if unjustified had caused the appellants no prejudice for which they could not be compensated by an award of costsPer Thean JAAt the time of the pre-trial conference on 27 March 1997 the parties had reached a settlement on liability and the indications from counsel were that they were likely to agree on the quantum of damages In particular according to counsel for the respondents the prospects of a settlement were good Neither party were in default There was really no cause for making the unless order and it ought not to have been made at that stage

14 Discovery against non-party after commencement of action

1048708 O 24 r 6(2)

Discovery against other person (O 24 r 6)6 mdash(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- 1048708 Application by SIC supported by affidavito affidavit to describe documents explain their relevance and state that the person against whom

discovery is sought has possession custody or power of the documents- 1048708 Court will apply the fair disposalsavings of costs test - Shaw v Vauxhall [1974] 2 All ER 1185- kuah kok kim - The procedure in O 24 r 7A- At the outset we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should

be read conjunctively or disjunctively Counsel for the appellant argued that it should be the latter and explained as follows Order 24 r 7A of the RSC has its origin in the United Kingdom provision It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims and does not include the word lsquoorrsquo between paras (a) and (b) Thus as long as para (a) is satisfied there was no need to comply with para (b)

- This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970 in which the United Kingdom provision derives its operative force s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied so long as para (a) was

- It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

- An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings other than the applicant

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant

and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession custody or power

- The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable lsquoin such circumstances as may be specified in the rulesrsquo As explained in the Supreme Court Practice 1995 Vol 1 para 247A1 with regard to the English provision

- By the operation of this rule the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party eg medical and hospital records which in other classes of action they can obtain by means of a subpoena duces tecum to attend and produce such documents at the trial The effect of this rule is thus in personal injury actions to advance the time for disclosure of relevant documents mdash

- by a likely party from the stage after action to the stage before action and- by a non-party from stag e of trial to pre-trial stage- As for the operation of the local O 24 r 7A s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the

SCJA) provides that the High Court shall have the powers set out in the First Schedule Paragraph 12 of the First Schedule provides

- Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

- The prescribed rule is O 24 r 7A which provides that- An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of

documents before the commencement of proceedings shall be made by originating summons hellip and the person against whom the order is sought shall be made defendant to the summons

- An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings

- A summons under paragraph (1) or (2) shall be supported by an affidavit which must mdash- in the case of a summons under paragraph (1) state the grounds of the application the material facts

pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court or

- in any case specify or describe the documents in respect of which the order is sought and show if practicable by reference to any pleading served or intended to be served in the proceedings that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession custody or power

- Contrary to the appellantrsquos argument it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery nevertheless it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court Thus one must still look at the RSC in order to find the prescribed procedure and these procedures whatever they may be cannot be circumvented by the SCJA which does not govern the matter As such we have to scrutinize O 24 r 7A itself to determine its true meaning and effect

- The use of the word lsquoorrsquo between paras (a) and (b) has created some difficulties It can be seen that the English equivalent does not place the conjunction between the two paragraphs Construed literally it would

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

mean that where r 7A(1) applies the affidavit must satisfy the requirements of either para (a) or para (b) and where r 7A(2) applies the affidavit must satisfy the requirements of para (b) only We agree with the trial judge that this cannot be right

- On a close examination of r 7A(3) it can be seen the requirements under para (a) are different from those under para (b) Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1) If the rule was to be construed literally then the requirements in para (a) can be by-passed if para (b) could be satisfied instead This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1)

- Conversely if the affidavit only satisfied para (a) and not para (b) it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking whether they were relevant to an intended proceeding and whether the person against whom discovery is sought is likely to have them

- Moreover the words lsquoin any casersquo in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2) If so then para (a) would be rendered redundant should the two paragraphs be construed disjunctively As such we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs and that the word lsquoorrsquo should be read or construed to mean lsquoandrsquo Thus contrary to the appellantsrsquo submission the two paragraphs must be construed conjunctively and not disjunctively

- The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3) The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them as well as specify the documents Moreover they were entitled to know the implied terms and the particulars of negligence and of the duty which they were alleged to have breached

- Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E ndashF

- In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it Ill-founded irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings

- The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J

- I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section hellip

- Omrod LJ further added at p 1189 FndashJ- But it cuts both ways and if the prospective plaintiffs are to obtain discovery at an earlier stage than

the old fashioned way then it is clear that the defendants should be able to know at an early stage mdash at a corresponding stage mdash what the plaintiffrsquos case really is And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation July 1963] hellip are extremely important and if a plaintiff or prospective plaintiff proposes to take advantage of s 31 then he ought to set out the substance of his case hellip he should commit himself to at least a description of the accident and how it happened or a statement that he does not know how it happened

- It can be seen from the tenor of the cases that where pre-action discovery is sought the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is This is because in the nature of pre-action discovery the plaintiff does not yet know whether he has a viable claim against the defendant and the rule is there to assist him in his search for the answer Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition

- On the present facts we agree with the trial judge that the appellantsrsquo affidavit had sufficiently complied with r 7A(3) The affidavit referred to the relationship between the appellants the respondents and the majority shareholders in the company and it gave particulars of the number of shares held by the appellants and the majority shareholders It also stated the background to this application referring to the letter appointing the respondents as valuers as well as subsequent correspondences between the appellants and the respondents

- The appellants also referred to the valuation report obtained from KPMG Peat Marwick compared it with the valuation of the respondentsrsquo and stated that there was a substantial difference They had also stated the potential causes of action against the respondents As such we were of the view that the appellants had

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings We were also satisfied that the respondents appeared lsquolikely to bersquo parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation

- Although the affidavit should state the cause of action it is not necessary to give particulars of it even though it may be desirable Indeed the rule does not state that particulars of the cause of action must be given We do not agree with the respondents that lsquomaterial factsrsquo under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action

- If the material facts had to be as precise as those normally pleaded in any cause of action and if the appellants were in a position to depose to an affidavit to this effect they could well be in a position to commence proceedings immediately It would not be necessary to provide a scheme for discovery before action To be so precise would impose too onerous a burden on the appellants We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary this was adequate

- The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings in accordance with r 7A(3)(b) We are of the view that the appellants had complied with the rule The appellants had stated that they wished to obtain lsquothe working papers and documents employed by the defendants in arriving at the said valuation in order to ascertain the basis of the valuationrsquo

- As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause or intended cause of action that would be enough They need not go on to describe and name each and every such document specifically Indeed it would be unreasonable and impossible for the appellants to do so Thus we agree with the trial judge that the appellantsrsquo affidavit had complied with paras (a) and (b) of O 24 r 7A(3)

- The principles of pre-action discovery- What then is the scope of pre-action discovery This was first laid down in Dunning v Board of Governors

of the United Liverpool Hospitals where Denning MR stated- One of the objects of the section is to enable the plaintiff to find out mdash before he starts proceedings mdash

whether he has a good cause of action or not This object would be defeated if he had to show mdash in advance mdash that he had already got a good cause of action before he saw the documents

- In Dunningrsquos case it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery The words lsquolikely to be madersquo in s 31 of the 1970 Act were to be construed as meaning lsquomayrsquo or lsquomay well be madersquo if on examination the documents in question indicated that the applicant had a good cause of action The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought

- The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents On the facts the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action

- At the outset it should be noted that regardless of whether the valuation was a speaking or non-speaking one the valuer still has to attain the requisite standard of care of an ordinary competent valuer There is also an implied term in a contract of valuation to exercise reasonable care and skill Hence a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares

- The appellants had obtained another valuation from a reputable firm KPMG Peat Marwick which had placed the value of the shares between $317 and $326 per share compared to the respondentsrsquo valuation of $215 per share There was a significant disparity between the two valuations Moreover KPMG Peat Marwick had also given reasons for the basis of their valuation We are of the view that the appellants had shown that there was a reasonable basis for their allegations Moreover the appellants had shown that this was sufficient to raise a cause of action albeit not necessarily a good cause of action

- The principle on which the discretion must be exercise is found in O 24 r 8 which provides that the court lsquoshall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costsrsquo The respondents contended that having regard to r 8 and in the exercise of the courtrsquos discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A

- The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case Since this was meant to be a non-speaking valuation it would be

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision thus disclosing the reasons for their valuation According to the respondents this would be a breach of contract between the appellants the respondents and the majority shareholders who had agreed to a non-speaking valuation

- We did not agree with the respondents The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it Thus the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents Even if the valuation was proven to be wrong neither party can seek to rescind the contract of sale for as between them they must be bound by the valuation

- This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion it will not be set aside if the valuer made a mistake as that was the agreement between the parties Indeed the appellants recognised this and were not seeking to set aside the valuation

- However as the trial judge rightly stated this does not prevent the appellants or the majority shareholders from bringing a separate action against the valuers for negligence or breach of an implied term In Arenson v Casson Beckman Rutley amp Co [1977] AC 405 the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity Lord Wheatley thus said at 426BndashD

- The respondents undertook the request and in due course provided a non-speaking valuation In that situation certain duties of care in relation to the valuation were incumbent on the respondents That is not in dispute Since Hedley Bryne amp Co Ltd v Heller amp Partners Ltd [1964] AC 465 it is clear if it ever was in doubt that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof

- Accordingly there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se and not as between the shareholders and the valuers

- The next question was whether the documents sought by the appellants were lsquorelevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedingsrsquo This would include both the situation in which

- without sight of the documents in question the intending plaintiff may have ample evidence on which to found a claim and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong mdash per James LJ in Dunningrsquos case

- Thus there must be some grounds for seeking pre-action discovery bearing in mind that the provision should not be used for fishing expeditions and that the normal course is to get lsquoordinary discoveryrsquo after commencement of proceedings

- However as James LJ added in Dunningrsquos case- I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery

of documents hellip on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim

- With regard to the question of relevance the trial judge decided as follows- The defendants were in January 1993 instructed to give a valuation of the shares of the company at

31 July 1989 In carrying out their instructions it is inconceivable that they referred to no documents The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989 Those for earlier periods and even for later periods would almost certainly have been referred to There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs

- We agreed with the trial judgersquos decision on this point- However the trial judge went further to say as follows- The defendants say that they are not required to give reasons for their valuation Giving discovery of

such documents is not giving reasons They are accountants They are skilled professional people No doubt that is why they have been instructed for this purpose There is more to arriving at an opinion of the value of the shares than merely looking at the companyrsquos financial statements and reports of other

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

persons The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents hellip

- For these reasons I varied the assistant registrarrsquos order for discovery by excluding the working papers and documents created or prepared by the defendants

- We came to a different conclusion Although the respondents were not required to give reasons for their valuation this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings

- In deciding whether to order discovery of those documents we were not concerned with the nature of a non-speaking valuation but the purpose of the discovery namely that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents If that was the case then the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding

- As we had stated earlier the fact that it was a non-speaking valuation would not affect the respondentsrsquo duty of care or liability towards the appellants It prevented the appellants and the majority shareholders as between themselves from challenging the correctness of the decision However it was precisely these documents which would reveal the manner in which the valuation was arrived at and thus to assist the appellants in deciding whether they have a good cause of action

- In addition the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe If a valuer had adopted one of the standard techniques of professional valuers he would not be liable for failing to use some alternative method which other valuers use In this instance the respondents might well have used a different method from KPMG Peat Marwick Moreover a valuer is not liable merely because he overvalues or undervalues there is a permissible margin of error within which his valuation can fall The respondents therefore observed that even if discovery was given the appellants may well decide that they do not have a good cause of action

- Again this argument could not succeed It was not the courtrsquos function at this stage of the application to dwell into the merits of the case and to determine based on what little available evidence whether there is a good claim or not The courtrsquos duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition

- It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action As Denning MR said in Dunning the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents

- In the result we were of the view that the documents and working papers which were relied upon referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings and that they were necessary for disposing fairly of the cause or matter We therefore allowed the appeal with costs here and in the High Court The order of the High Court was set aside and we directed that the order of the assistant registrar be restored

15 Deeming of authenticity of documents

- Order for discovery of particular documents (O 24 r 5)5 (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has or at some time had in his possession custody or power the document or class of document specified or described in the application and that it falls within one of the following descriptions

(a) a document on which the party relies or will rely (b) a document which could mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may mdash (i) adversely affect his own case (ii) adversely affect another partyrsquos case or (iii) support another partyrsquos case

- when serve docs on you you are deemed to accept their authencity First to prove to court that this doc is admissible when prod doc in court First to have court recog

tt it is a true letter Proved by witness etc but stimes may not be easy to prove because witneses dead etc

So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later

So shld file notice objecting quickly In practice many pple donrsquot concentrate on this

- 1048708 List of documents to contain a notice to inspect in Form 39- 1048708 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days

of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O 27 r 4)4 mdash(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall unless the Court otherwise orders be deemed to admit mdash (a) that any document described in the list as an original document is such a document and was printed written signed or executed as it purports respectively to have been and (b) that any document described therein as a copy is a true copy This paragraph does not apply to a document the authenticity of which the party has denied in his pleading (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires whichever is the later the party to whom the list is served serves on the party whose list it is a notice stating in relation to any documents specified therein that he does not admit the authenticity of that document and requires it to be proved at the trial he shall not be deemed to make any admission in relation to that document under paragraph (1) (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession custody or power (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24 Rule 5 as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder

- Notices to admit or produce documents (O 27 r 5)5 mdash(1) Except where Rule 4 (1) applies a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must within 14 days after service of the notice serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders (4) Except where Rule 4 (3) applies a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter (5) A notice to admit a notice of non-admission and a notice to produce documents shall be in Forms 53 54 and 55 respectively

16 Restriction on use of privileged document inspection of which has been inadvertently allowed (O 24 r 19)

19 Where a party inadvertently allows a privileged document to be inspected the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

17 Duties of the solicitor ndash important

- Failure to comply with requirement for discovery etc (O 24 r 16)16 (4) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal (5) A party who is required by any Rule in this Order or by any order made thereunder to make discovery of documents or to produce any document for the purpose of inspection or any other purpose but who fails to comply with any provision of that Rule or with that order as the case may be may not rely on those documents save with the leave of the Court

- 1048708 Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise

scope of the obligation to make full and proper discovery This must be done at an early stage of the litigation Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed

- Solicitor must also take steps to ensure that all discoverable documents are preservedo 1048708 Ambit of the duty is illustrated by

- Myers v Elman [1940] AC 282 ndash sols left it to his clerk to do the discovery Court took him to task ndash deficiency He was ordered to pay the costs of part of the action Court has juris over solicitor as officer of court

- Woods v Martins Bank [1959] 1 QB 55 ndash sol wrote wrong letter about what client oblig as to discovery was Then left someone else to do the discovery Court said that cannot Still dereliction of duty

- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 ndash corporate client they have practice of regularly destroying docs 3 yr doc destruction policy Fr time there is prospect of litigation advise client of need to maintain and preserve all relevant doc

o 1048708 Legal Profession (Professional Conduct) Rules 1998 Rule 58 - An advocate amp solicitor shall cease to act for a client if ndash

(a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make or

(b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it

But no need to tell court Judge yourself Only oblig to discharge yourself

18 Implied undertaking not to use documents for a collateral ulterior purpose

- Court insist that other side x abuse documents- Why this implied undertaking not to use docs beyond case ndash

1 these are private docs 2 court jealous abt parties complying with discovery So flipside is that upon production they are

not abused =gt promote discovery- 1048708 Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529

implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made unless leave of Court is granted

- 1048708 breach can result in contempt proceedings andor injunction to restrain unjustified use - 1048708 leave of Court is only granted in very exceptional circumstances (because of public interest

involved) Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343 Reebok International Ltd v Royal Corp [1992] 2 SLR 136 ndash see above

- 1048708 The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 ndash parties filed affidavit in support ndash issue of which liquidator shld be appted One party filed affidavit and attached to docs Court said that docs in affidavit ndash no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr they prod of their own accord Ie if you file affidavit withot compulsion then implied undertaking is off

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

- From a ptent case ldquo16 The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process It is in no sense implied as a result of dealings between the parties The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action Had he thought of it he might well have wanted full freedom to do what he liked with the material particularly if his own discovery is non existent or very limited So the obligation is not to be likened to a term implied in a contract between the parties to the litigation On the contrary it is an obligation to the court not the other party which is implied It is for that reason that its breach is treated as contempt

The obligation is imposed as a matter of law The point was put clearly by Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 764

This undertaking is implied whether the court expressly requires it or not The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties not one which is owed simply to the parties likewise it is an obligation which the court has the right to control and can modify or release a party from It is an obligation which arises from legal process and therefore is within the control of the court gives rise to direct sanction which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court

17 The reasons for the creation of such an obligation were summarised by Browne- Wilkinson V-C in Derby v Weldon (No 2) (The Times 20 October 1988)

The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery to disclose his private documents But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given the Court is astute to prevent a document so obtained from being used for any other purpose As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not without the consent of the Court to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed A breach of the implied undertaking is a contempt of Court

18 It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination I think it would be just as much a contempt of court for say a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so Certainly the implied undertaking applies to the parties lawyers The contrary was not suggested

19 inspection of documents o24r9-14

Inspection of documents referred to in list (O 24 r 9)9 A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and accordingly he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice Inspection of documents referred to in pleadings and affidavits (O 24 r 10)10 mdash(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof (2) The party on whom a notice is served under paragraph (1) must within 4 days after service of the notice serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

Order for production for inspection (O 24 r 11)11 mdash(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) mdash (a) fails to serve a notice under Rule 9 or as the case may be Rule 10 (2) (b) objects to produce any document for inspection or (c) offers inspection at a time or place such that in the opinion of the Court it is unreasonable to offer inspection then or as the case may be there then subject to Rule 13 (1) the Court may on the application of the party entitled to inspection make an order in Form 42 for the production of the documents in question for inspection at such time and place and in such manner as it thinks fit (2) Without prejudice to paragraph (1) but subject to Rule 13 (1) the Court may on the application of any party to a cause or matter order any other party to permit the party applying to inspect any documents in the possession custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder Order for production to Court (O 24 r 12)12 mdash(1) At any stage of the proceedings in any cause or matter the Court may subject to Rule 13 (1) order any party to produce to the Court any document in his possession custody or power that falls within one of the following descriptions (a) documents on which a party applying relies or will rely (b) documents which could mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may mdash (i) adversely affect a partyrsquos case or (ii) support a partyrsquos case (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit Production to be ordered only if necessary etc (O 24 r 13)13 mdash(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground the Court may inspect the document for the purpose of deciding whether the claim or objection is valid Production of business books (O 24 r 14)14 mdash(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules the Court may instead of ordering the production of the original books for inspection order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books (2) Any such affidavit shall state whether or not there are in the original book any and if so what erasures interlineations or alterations (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule the Court may order production of the book from which the copy was made

B INTERROGATORIES

JurisdictionSCJA Discovery and interrogatories12 Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court

Order 26 ndash interrogatories between parties

i) What are interrogatories

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

- Asking qns of other side ndash rarely used only when dispute is very factual eg fraud case- method of discovery of material facts by which written questions are delivered by one party to another

relating to a matter in question between them in the cause or matter

ii) When are interrogatories useful- rarely used as a matter of practice- where one party must rely on another as a sole source of information- eg Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the

events- where parties have different versions of the same set of circumstances interrogatories can be used as a way

of obtaining admissions so as to narrow the issues in dispute

iii) purpose

Discovery by interrogatories (O 26 r 1)1 mdash(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either mdash (a) for disposing fairly of the cause or matter or (b) for saving costs

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 71015 We consider first the appeal in the 1987 action Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC On the interrogatories Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicantrsquos case or destroy the opponentrsquos case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs He held that in relation to a defamation action where the defence of fair comment is raised a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission

Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng amp Ors [1974] 1 Mlj 174I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965 The other five questions are about a transaction between the company and a mining company in 1969 some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970 From the plaintiff`s own statement of claim he was in the company till about January 1970 and question I itself suggests that the first defendant had also been financing him All these matters should therefore be within the knowledge of the plaintiff On this very consideration I cannot see that the particulars required are necessary at all Further in the action the plaintiff is charging fraud It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars To the objection that the questions may incriminate the defendants the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions particularly those relating to the transaction with the mining company From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company In any case the plaintiff should be able to show the amount involved in the transaction since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor a former judge of the High Court in this country and who is now the legal officer of the mining company I would disallow the questions on this very ground apart from the fact that it has not been shown that the questions would not incriminate the defendants In addition to all the above on the authority of Ellis v Ambler 36 TLR 410 I do not have to consider the application at all as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed In that case the plaintiff applied for leave to deliver interrogatories after having closed the pleadings He

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

gave no reason for the delay The judge refused leave without even looking at the interrogatories On appeal the court refused to interfere with the discretion of the judge in Chambers The case is on all fours with the present case In fact the present case goes further against the plaintiff He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary The solicitor appearing on behalf of the plaintiff now says it was his fault Whether or not it was his fault does not answer the question whether the questions are necessary at all and does not make the circumstances exceptional for the court to exercise its discretion in granting leave Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown see Atkins Court Forms 2nd Ed vol 22 page 367 To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence None has been shown here On any consideration I can see no ground for granting this application It is dismissed with costs Application dismissed

iv) How to apply- O26 r 2

Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered

If other party fails to provide answers Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

- O 26 r 6- O 26 r 3(2)

If other party does not wish to answer must take out application for interrogatories to be withdrawn within 14 days of service

v) Courtrsquos discretion to order interrogatories - test of relevance and necessity similar to that for discovery- O 26 r 1

interrogatories must be necessary for disposing fairly of the matter or for saving costs Eg no need to call witness etc

must demo real saving of time and costs o order 26 rule 11 and 26A rule 2

Overseas-Chinese Banking Corporation Ltd v Wright amp Ors [1989] 3 MLJ 73Held allowing the plaintiffs` appeal (1)Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case (2)Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs If the admission of a fact could be proved by a witness who would be called at the trial interrogatories would not as a rule be allowed because they would add to the costs (3)Where the defence of fair comment was raised a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission (4)The answers to interrogatories 1 3 and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs The plaintiffs were also not in a position to answer interrogatory 4 (5)The defence had failed to set out specific instances of the plaintiffs` negligence If they had particularized specific instances of negligence then interrogatories could be raised on those specific instances of negligence (6)By interrogatories 6 and 7 the defendants were in effect asking the plaintiffs `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment` This was a clear case of fishing (7)The defendants hoped that through the interrogatories process they would be able to stumble upon something which would show their comment to be fair This was not a legitimate function of interrogatories A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured (8)Although it was not necessary to decide the point as a matter of logic if the defendant wished to rely on certain facts to support his plea of fair comment those facts must at least have been at the back of his mind when making the comment (9)As regards the order for the plaintiffs to serve a further and better list of documents generally a list of documents once verified would be conclusive But a party may be ordered to give a further and better list where

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

it appeared from the list itself or from the documents referred to in it or from admissions made that the party had other documents in his possession custody or power (10)The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories Even if there were such documents those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment (11)The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories and was no less a fishing expedition than the interrogatories

- irrelevant and unnec interrogatories ndash order 26 rule 13Discovery by interrogatories (O 26 r 1)1 (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness

vi) No interrog against govt order 26 rule 33Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government

vii) Privilege

viii) Interrog between parties

Form and nature of interrogatories (O 26 r 2)2 mdash(1) Where interrogatories are served a note at the end of the interrogatories shall specify mdash (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person the officer or member on whom the interrogatories are to be served and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party which of the interrogatories each party or as the case may be an agent or servant is required to answer and which agent or servant (2) Subject to Rule 5 (1) a party on whom interrogatories are served shall unless the Court orders otherwise on an application under Rule 3 (2) be required to give within the period specified under Rule 2 (1) (a) answers which shall (unless the Court otherwise directs) be on affidavit (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court (4) Ordered interrogatories when served shall be in Form 48 The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50 Interrogatories without Order (O 26 r 3)3 mdash(1) Interrogatories without order may be served on a party not more than twice (2) A party on whom interrogatories without order are served may within 14 days of the service of the interrogatories apply to the Court for the interrogatories to be varied or withdrawn and on any such application the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order) (3) Interrogatories without order shall not be served on the Government Ordered interrogatories (O 26 r 4)4 mdash(1) Where an application is made for leave to serve interrogatories a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25 Rule 7 as the case may be by which the application is made (2) In deciding whether to give leave to serve interrogatories the Court shall take into account any offer made by the party to be interrogated to give particulars make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

Objections and insufficient answers (O 26 r 5)5 mdash(1) Without prejudice to Rule 3 (2) where a person objects to answering any interrogatory on the ground of privilege he may take the objection in his answer (2) Where any person on whom ordered interrogatories have been served answers any of them insufficiently the Court may make an order requiring him to make a further answer either by affidavit or on oral examination as the Court may direct (3) Where any person on whom interrogatories without order have been served answers any of them insufficiently the party serving the interrogatories may ask for further and better particulars of the answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1)

ix) Failure to comply

Failure to comply with Order (O 26 r 6)6 mdash(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3) the Court may make such order as it thinks just including in particular an order that the action be dismissed or as the case may be an order that the defence be struck out and judgment be entered accordingly (2) Without prejudice to paragraph (1) where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2) he shall be liable to committal (3) Service on a partyrsquos solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that he had no notice or knowledge of the order (4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

x) Liability of solicitor

Failure to comply with Order (O 26 r 6)6(4) A solicitor on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal

xi) Use of answers to interrogatories at trial O26 rule 7Use of answers to interrogatories at trial (O 26 r 7)7 A party may put in evidence at the trial of a cause or matter or of any issue therein some only of the answers to interrogatories or part only of such answer without putting in evidence the other answers or as the case may be the whole of that answer but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other the Court may direct that that other answer or part shall be put in evidence

Special classes of interrogatoriesa) Pre-action interrogatories

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(e) O 26A r 1(1)(f) Procedure for application O26A r13-4

Interrogatories against other person (O 26A r 1)1 mdash(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons which must be served on that person personally and on every party to the proceedings (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must mdash (a) in the case of an originating summons under paragraph (1) state the grounds for the application the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings or both (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just

(g) application by OS with supporting affidavit(h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and

whether person is likely to be a party(i) must also show relevance of questions to issues arising or likely to arise

b) Interrogatories against non-parties- O 26A r 1(2)- application by SIC with supporting affidavit- affidavit must be personally served on the person and on every party to the proceedings

C SUMMONS FOR DIRECTIONS - O 25

- purpose

Summons for directions (O 25 r 1)1 mdash(1) With a view to providing in every action to which this Rule applies an occasion for the consideration by the Court of the preparations for the trial of the action so that mdash (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal thereof the plaintiff must within one month after the pleadings in the action are deemed to be closed take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

Auto Clean N Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409- In disallowing the plaintiffsrsquo applications the learned judge took into account what he described as lsquothree

basic matters in relation to summons for directionsrsquo First all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions Only unforeseen matters should be the subject of subsequent interlocutory applications There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or in the words of the judge lsquoaffidavits to re-shape evidence after sighting the opponentrsquos evidencersquo Second a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information In other words the party must provide good reasons to serve as material upon which the courtrsquos discretion may be exercised Third while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party otherwise solicitors could always defeat the effect and purpose of the rules and orders through their negligence The learned judge was of the view that save for the new witness Henry Loh the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage why it was necessary to call the new witnesses and why the two named witnesses could not have filed their affidavits of evidence in chief in time

- The appeal- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned

judge However he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system and that is the prerogative of each party to call all witnesses he deems fit in support of his case Briscoe v Briscoe [1967ndash68] P 501 at p 504 He argued that when this prerogative is being exercised by a party long before the actual trial as in this case the court should be slow to deny the party the right to call the witnesses unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply if such a need should arise In this case there was no such prejudice

- We were in substantial agreement with this argument As expressly spelt out in O 25 r 1 the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just expeditious and economical disposal of the proceedings The rules in O 25 are framed to achieve this objective The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with O 25 r 2 In so far as evidence to be adduced at the trial is concerned O 25 r 3 sets out a comprehensive list of matters which the court has to consider Rule 3 in so far as relevant to this appeal provides

- On the hearing of the summons for directions the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly mdash

- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein

- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-chief of the witnesses specified be each limited to a single affidavit

- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witnesslsquos evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial hellip

- Thus these rules empowered the court to give directions on among other things the exchange of affidavits of evidence in chief between the parties The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings to save costs and to eliminate any element of surprise see Lee Kuan Yew amp Anor v Vinocur amp Ors and another action [1995] 3 SLR 477 at p 484 By the operation of these rules the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases This in turn would facilitate and encourage them to come to a settlement

- In considering the question of simultaneous exchange of witnessesrsquo statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373 Lord Donaldson of Lymington MR had this to say

- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation taking the form of increased positive case management by the judiciary and the

adoption of procedures designed (a) to identify the real issues in dispute and (b) to enable each party to assess the relative strengths and weaknesses of his own and his opponentrsquos case at the earliest possible moment and well before any trial Not only does this tend to make for shorter trials and save costs even more important it facilitates and encourages settlements The most important change has been the requirement that save in exceptional cases witness statements be exchanged prior to the trial

- Reverting to the instant case we respectfully agree with the learned judge on the following that all matters which must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in the summons for directions that a party seeking to persuade the court to exercise its discretionary power must provide adequate information and that generally fault or neglect of a solicitor in complying with the rules of court or court orders is not sufficient reason for the court to grant an indulgence to the defaulting party Lastly parties to litigation must comply with the rules and the orders of court

- That having said it must be appreciated that an order or orders made under these rules at the interlocutory stage are not immutable and certainly at that stage finality cannot be achieved With reference to complying with O 25 r 3 the court must always be conscious of the fact that circumstances may and do arise which result in parties being unable to name all their witnesses at the stage of the summons for directions and consequently leave should be given to allow the parties to introduce new witnesses subsequent to the directions that have been given There are multiple reasons for this such as the failure of parties in giving proper or adequate instructions to their solicitors at the initial stage failure of the parties and those advising them in properly weighing or assessing the evidence subsequent amendments to pleadings discovery of evidence relevant to the claim or defence or some other new development arising Whatever the case may be we think that the courts should not adopt an unduly rigid or restrictive approach in considering the directions to be given concerning matters pertaining to the trial or hearing Instead a balance should be struck between the need to comply with the rules and the partiesrsquo right to call witnesses whom they deem necessary to establish their case It may well be that the additional evidence to be adduced by the parties may assist in illuminating the issues before the court or result in the expeditious disposal of the proceedings If however it really turns out at the trial that the evidence adduced is unnecessary irrelevant or vexatious the trial judge is in full control and is in a position to deal with the party adducing such evidence in an appropriate way such as by disallowing the evidence which is being elicited from the witness andor by an order as to costs It must always be borne in mind that the duty of the court is to examine all the evidence put forward by the parties which is material and relevant to the dispute between the parties and not to shut out potentially material and relevant evidence by a strict adherence to the rules of civil procedure

- Reverting to this case we saw no difficulty in allowing the plaintiffs to call the additional witnesses to give evidence and in granting an extension of time for the plaintiffsrsquo two witnesses Low Choon Yee and Connie Teo Ping Ling to file their affidavits of evidence-in-chief The proceedings are still at a relatively early stage and no prejudice would be caused to the defendants In particular the action had not even been set down for trial and clearly the defendants would have sufficient time and opportunity to consider and if necessary to respond to the evidence There would thus be no element of surprise Quite the contrary by placing all the necessary and relevant evidence on record the plaintiffs are acting consistently with the guiding principle behind the scheme of requiring parties to serve on each other affidavits of evidence-in-chief of the witnesses which is conveniently summed up by the phrase lsquoplacing the cards on the tablersquo In this connection we agreed with the criticism expressed by the learned judge that he could not comprehend the limitation imposed by the assistant registrar ie that the evidence was to be confined to the evidence already stated in the affidavits filed That limitation with respect was meaningless and ought not to have been imposed

- Time

1048708 Plaintiff to take out summons for directions within 1 month after the close of pleadings 1048708 If Plaintiff fails to do so Defendant can also apply or alternatively may apply for action to be

dismissed

- procedure see above rule 11

- actions to which order 25 does ot apply ndash rule 12a-g

Order 24 rule 1(2) This Rule applies to all actions begun by writ except mdash (a) actions in which the plaintiff or defendant has applied for judgment under Order 14

(b) actions in which the plaintiff or defendant has applied under Order 18 Rule 22 for trial without pleadings or further pleadings and directions have been given under that Rule (c) actions in which an order has been made under Order 24 Rule 2 for the trial of the issue or question before discovery (d) actions in which directions have been given under Order 29 Rule 7 (e) actions in which an order for the taking of an account has been made under Order 43 Rule 1 (f) actions which have been referred to the Registrar for trial (g) actions for which automatic directions are provided by Rule 8 and (h) non-injury motor accident actions as defined in Order 59 Appendix 2 Part V filed in the Subordinate Courts (3) [Deleted by S 55199]

- conseq of failure of plaintiff to take out SFD O 25 r 1(4)-f

Order 25 rule 1(4) If the plaintiff does not take out a summons for directions in accordance with paragraphs (1) and (2) the defendant or any defendant may do so or apply for an order to dismiss the action (5) On an application by a defendant to dismiss the action under paragraph (4) the Court may either dismiss the action on such terms as may be just or deal with the application as if it were a summons for directions

Law Mun amp Ors V Chua Lai Seng amp Ors [1984] 2 Mlj 328 The first issue here is whether this action which is already part heard should now be

dismissed for the failure of the Plaintiffs to take out a Summons for Directions under O 25 r 1 (4) or for alleged want of prosecution for failure to set down the action for trial or to give notice of trial as provided by O 34 r 2(2) and r 8(1) respectively

hellipThe omission to take out the Summons for Directions was a somewhat more difficult point Mr Suppiah`s argument is that O 25 r 1(1) is mandatory and that O 25 r 1(4) gave the Defendant an option to apply for an order to dismiss the action He seems to imply that not having the privilege of discovery by way of Affidavits of Documents Interrogatories and Inspection had seriously prejudiced the first Defendant in his preparation for the trial of this action

The Plaintiffs on the other hand relied upon O 25 r 2(a) the material words of which read- hellip

My reading of the meaning of these rules is that the application for Summary judgment became a notional Summons for directions when the order granting conditional leave was made and O 25 rr 2 to 7 must be applied mutatis mutandis to this situation It is a misconception for the defendant to contend as was done in this case that O 25 r 1(4) gives him an option only to apply for a dismissal of the action in such a situation The defendant is also entitled under O 25 r 1(4) to apply for any directions he thinks necessary for the proper conduct of the trial and that option was open to him at all material times on and after 16 February 1984 A number of applications were in fact made on behalf of the first Defendant before the hearing date but it was never contended until 17 April 1984 that a Summons for Directions should be taken out

With the greatest respect to Counsel for the first Defendant this was too late to try and turn the clock back Once the trial began the general directions which may have been of moment earlier must of necessity have turned to the specific If there is any particular document that needs to be discovered even at a late stage or any special direction that needs to be issued in the interests of justice the court in a proper case will always entertain the application if not under any specific rules (See eg O 24 rr 7 and 8 O 26 rr 2 and 9) then under the inherent jurisdiction of the court This is not an ordinary case The Affidavits filed in connection with the application for summary judgment were very voluminous on both sides and perhaps one may be excused for having taken the view that both sides had disclosed every document relevant to the claim or the defence as the case may be As Solicitor for both parties one may be excused perhaps for thinking that the first Defendant would have known of the identity and existence of any other documents which were relevant to this matter and have commented on them in his Affidavits if there were such documents in existence But there is no reference to any specific facts or documents in the Affidavit in support of the application before me and I am unable to hold that the Defendant has been prejudiced by the omission to go through the motions of

taking out a Summons for Directions in the present case Accordingly I hold that there is no substance in the first point also

- Application to counterclaims ndash rule 16

Order 25 rule 1(6) In the case of an action which is proceeding only as respects a counterclaim references in this Rule to the plaintiff and defendant shall be construed respectively as references to the party making the counterclaim and the defendant to the counterclaim

- Duty and power of court

Duty to consider all matters (O 25 r 2)2 mdash(1) When the summons for directions first comes to be heard the Court shall consider whether mdash (a) it is possible to deal then with all the matters which by Rules 3 to 7 are required to be considered on the hearing of the summons for directions or (b) it is expedient to adjourn the consideration of all or any of those matters until a later stage (2) If when the summons for directions first comes to be heard the Court considers that it is possible to deal then with all the said matters it shall deal with them forthwith and shall endeavour to secure that all other matters which must or can be dealt with on interlocutory applications and have not already been dealt with are also then dealt with (3) If when the summons for directions first comes to be heard the Court considers that it is expedient to adjourn the consideration of all or any of the matters which by Rules 3 to 7 are required to be considered on the hearing of the summons the Court shall deal forthwith with such of those matters as it considers can conveniently be dealt with forthwith and adjourn the consideration of the remaining matters and shall endeavour to secure that all other matters which must or can be dealt with on interlocutory applications and have not already been dealt with are dealt with either then or at a resumed hearing of the summons for directions (4) If on the summons for directions an action is ordered to be transferred to the Subordinate Courts nothing in this Order shall be construed as requiring the Court to make any further order on the summons (5) If on the summons for directions the action or any question or issue therein is ordered to be tried before the Registrar the Court may without giving any further directions adjourn the summons so that it can be heard by the Registrar and the party required to apply to the Registrar for directions may do so by notice without taking out a fresh summons (6) If the hearing of the summons for directions is adjourned without a day being fixed for the resumed hearing thereof any party may restore it to the list on 2 days notice to the other parties

- 1048708 Principles1 all matters that must or can be dealt with in interlocutory applications and which have not already been dealt

with must be included in a Summons for directions2 only unforeseen matters should be the subject of subsequent interlocutory applications

Auto Clean lsquoNrsquo Shine Services v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409

- Common directions given by courts - Form 461) consolidation2) amendment of pleadings3) further and better particulars4) specific discovery5) interrogatories6) witnesses factual and expert7) affidavits of evidence in chief8) setting down trial period and dates

- interlocutory applications on SFD rule 7Duty to make all interlocutory applications on summons for directions (O 25 r 7)7 mdash(1) Any party to whom the summons for directions is addressed must so far as practicable apply at the hearing of the summons for any order or directions which he may desire as to any matter capable of being dealt with on an interlocutory application in the action and must not less than 7 days before the hearing of the summons serve on the other parties a notice in Form 46 specifying those orders and directions in so far as they differ from the orders and directions asked for by the summons

(2) If the hearing of the summons for directions is adjourned and any party to the proceedings desires to apply at the resumed hearing for any order or directions not asked for by the summons or in any notice given under paragraph (1) he must not less than 7 days before the resumed hearing of the summons serve on the other parties a notice specifying those orders and directions in so far as they differ from the orders and directions asked for by the summons or in any such notice (3) Any application subsequent to the summons for directions and before judgment as to any matter capable of being dealt with on an interlocutory application in the action must be made under the summons by 2 clear days notice to the other party stating the grounds of the application

- 1048708 Automatic directions apply to actions for personal injuries (excluding admiralty and medical negligence) and actions arising out of accidents on land due to a collision or apprehended collision O25 r 8

1048708 NB Does not apply to actions where parties have applied for judgment under O 14 - O 25 r8(7) 1048708 NB For non-injury motor accident actions under O 59 Appendix 2 Part V - O25 r1A

D SETTING DOWN

- 1048708 O 34

Application and interpretation (O 34 r 1)1 This Order applies to actions begun by writ and accordingly reference in this Order to an action shall be construed as references to an action so begun

- 1048708 Time set at summons for directions order 34 rule 21- conseq of failure by plaintiff to set down s34 rule 22

Time for setting down action (O 34 r 2)2 mdash(1) Every order made on a summons for directions shall fix a period within which the plaintiff is to set down the action for trial and must contain an estimate of the length of the trial and specify the number of witnesses if any (2) Where the plaintiff does not within the period fixed under paragraph (1) set down for trial the defendant may set the action down for trial or may apply to the Court to dismiss the action for want of prosecution and on the hearing of any such application the Court may order the action to be dismissed accordingly or may make such order as it thinks just (3) An action set down for trial must contain an estimate of the length of the trial and specify the number of witnesses (if any) and shall subject to any directions under Rule 4 specify the list in which the action is to be put

- docs to be lodged when setting down o34 r3 1048708 File a request in Form 61 and bundle containing writ pleadings previous directions given and a

certificate in Form 62 that all affidavits of evidencein- chief required to be exchanged have been so exchanged

Filing documents when setting down (O 34 r 3)3 mdash(1) In order to set down for trial an action the party setting it down must deliver to the Registrar a request in Form 61 that the action may be set down for trial together with a bundle for the use of the Judge consisting of one copy of each of the following documents (a) the writ (b) the pleadings (including any affidavits ordered to stand as pleadings) any notice or order for particulars and the particulars given (c) all orders made on the summons for directions and (d) a certificate in Form 62 signed by all parties to the action or their solicitors to the effect that all affidavits of the evidence-in-chief of witnesses ordered or required to be exchanged pursuant to Order 25 have been so exchanged (2) The bundle must be bound up in the proper chronological order and have endorsed thereon the names addresses and telephone numbers of the solicitors for the parties or in the case of a party who has no solicitor of the party himself

- 1048708 Notice of setting down to be served on the other parties

Notification of setting down (O 34 r 5)5 mdash(1) A party to an action who sets it down for trial must within 24 hours after doing so notify in Form 63 the other parties to the action that he has done so (2) It shall be the duty of all parties to an action entered in any list to furnish without delay to the Registrar all available information as to the action being or being likely to be settled or affecting the estimated length of the trial and if the action is settled or withdrawn to notify the Registrar of the fact without delay

- docs to be lodged before trial o34 r3A

Filing documents prior to trial (O 34 r 3A)3A mdash(1) The following documents must be filed not less than 5 days before the trial of an action (a) the originals of the affidavit of the evidence-in-chief of all witnesses (b) a bundle of all documents that will be relied on or referred to in the course of the trial by any party including any documents that are exhibited to the affidavits of the evidence-in-chief of all witnesses and (c) where the trial is in the High Court opening statements of all parties as may be prescribed in any practice directions for the time being issued by the Registrar (2) Each party shall file the affidavits of the evidence-in-chief of that partyrsquos witnesses (3) The contents of the bundle of the documents referred to in paragraph (1) (b) shall be agreed on between all parties as far as possible and this bundle of agreed documents shall be filed by the plaintiff (4) If the parties are unable to agree on the inclusion of certain documents those documents on which agreement cannot be reached shall be included in separate bundles and each such bundle shall be filed by the party that intends to rely on or refer to the documents in that bundle at the same time as the bundle of documents referred to in paragraph (1) (b) (5) The documents contained in bundles must be arranged chronologically or in some logical order and must be paginated (6) Care must be taken to avoid duplication within the same bundle (7) The contents and format of every bundle of documents filed in pursuance of this Rule shall comply with the requirements laid down in any practice directions for the time being issued by the Registrar (8) Any party may apply at any time to the Registrar for directions as to the filing bundling and organisation of documents intended to be used at the trial of the action and on such application the Registrar may make such order or give such direction as he thinks is necessary to achieve the just expeditious and economical conduct of the trial of the action

- power of court to make orders and give directions o34 A r1

Directions relating to lists (O 34 r 4)4 Nothing in this Order shall prejudice any power of the Chief Justice or the Senior District Judge as the case may be to give directions mdash (a) specifying the lists in which actions or actions of any class or description are to be set down for trial and providing for the keeping and publication of the lists (b) providing for the determination of a date for the trial of any action which has been set down or a date before which the trial thereof is not to take place and (c) as to the making of applications (whether to a Court or a Judge or the Registrar) to fix vacate or alter any such date and in particular requiring any such application to be supported by an estimate of the length of the trial and any other relevant information

- 1048708 O 34 r 2(2) - where P fails to set down D may set down or may apply to dismiss the action for want of prosecution

- 1048708 Affidavits of evidence-in-chief and bundles of documents to be filed not less than 5 days before trial - O 34 r 3A(1)

E PRE-TRIAL CONFERENCE

Power to make orders and give directions for the just expeditious and economical disposal of proceedings (O 34A r 1)1 mdash(1) Notwithstanding anything in these Rules the Court may at any time after the commencement of any proceedings of its own motion direct any party or parties to those proceedings to appear before it in order that the Court may make such order or give such direction as it thinks fit for the just expeditious and economical disposal of the cause or matter

(1A) Where the Court makes orders or gives directions under paragraph (1) it may take into account whether or not a party has complied with any relevant pre-action protocol or practice direction for the time being issued by the Registrar (2) Where any party fails to comply with any order made or direction given by the Court under paragraph (1) the Court may dismiss the action strike out the defence or counterclaim or make such other order as it thinks fit (3) The Court may in exercising its powers under paragraph (1) make such order as to costs as it thinks fit (4) Any judgment order or direction given or made against any party who does not appear before the Court when directed to do so under paragraph (1) may be set aside or varied by the Court on such terms as it thinks just Pre-trial conferences to be held when directed by the Court (O 34A r 2)2 mdash(1) Without prejudice to Rule 1 at any time before any action or proceedings are tried the Court may direct parties to attend a pre-trial conference relating to the matters arising in the action or proceedings (2) At the pre-trial conference the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with any such information as it thinks fit and may also give all such directions as appear to be necessary or desirable for securing the just expeditious and economical disposal of the action or proceedings (3) The Court having made directions under Rule 2 (2) or Rule 3 may either on its own motion or upon the application of any party if any party defaults in complying with any such directions dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit (4) Any judgment or order made under Rule 2 (3) may be set aside by the Court on the application of the party on such terms if any as it thinks just (5) [Deleted by S 28397] (6) At any time during the pre-trial conference where the parties are agreeable to a settlement of some or all of the matters in dispute in the action or proceedings the Court may enter judgment in the action or proceedings or make such order to give effect to the settlement Notification of pre-trial conferences (O 34A r 3)3 All parties shall be informed of the date and time appointed for the holding of the pre-trial conference by way of a notice in accordance with Form 64 and each party shall comply with any directions contained in such notice Attendance at pre-trial conferences by solicitor or in person as directed by the Court (O 34A r 4)4 Parties to the action or proceedings may be represented at the pre-trial conference by their solicitor if any but may if they so desire with the leave of the Court attend the pre-trial conference personally at the time originally appointed or as adjourned in addition to their solicitor Adjourned and subsequent pre-trial conferences (O 34A r 5)5 A pre-trial conference may be adjourned from time to time either generally or to a particular date as may be appropriate Failure to appear of one or more of the parties (O 34A r 6)6 mdash(1) If at the time appointed for the pre-trial conference one or more of the parties fails to attend the Court may dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such other order as the Court thinks fit (2) An order made by the Court in the absence of a party concerned or affected by the order may be set aside by the Court on the application of that party on such terms as it thinks just (3) Without prejudice to the preceding paragraphs of this Rule where one or more of the parties to the action or proceedings fails to attend the pre-trial conference the Court may if it thinks fit adjourn the conference Non-disclosure (O 34A r 7)7 No communication of facts disclosed or of any matter considered in the course of a pre-trial conference in any action or proceedings shall be made to the Court conducting the trial of the action or proceedings

- 1048708 Failure to appear at a PTC - O 34A r6 ndash action may be struck out - 1048708 Non-disclosure at trial - O 34A r7 ndash informal process Whatever is said in PTC cannot be told to trial

judge ndash but you can use if you reduce it into writing ie get it into a letter so that it becomes correspondence

F DISMISSAL FOR WANT OF PROSECUTION

1 automatic discontinuance ndash order 21 r2- 21 r 2(6) ndash

1 where a year has lapsed since the last step or proceeding in the action the action is deemed to have been discontinued

2 Court may extend the one year period on application of a party prior to the expiration of this period

3 this does not apply if there is a stay order in force

2 grds for dismissal

Jeyaretnam Joshua Benjamin v Lee Kuan Yew [2001] 4 SLR 1Facts

The respondent (lsquoLKYrsquo) and several others separately sued the appellant (lsquoJBJrsquo) for defamation (respectively lsquothe present actionrsquo and lsquoSuit 22597rsquo) Suit 22597 was heard first and judgment was reserved LKY but not JBJ indicated that he agreed to be bound by the courtrsquos determination in Suit 22597 as to the meaning of the defamatory wordsBoth parties in Suit 22597 appealed against the judgersquos decision After the Court of Appeal gave its decision on 17 July 1998 LKY took no further steps or proceedings for some two years and four months On 7 December 2000 LKYrsquos solicitor wrote to JBJrsquos solicitor asking if JBJ agreed with the Court of Appealrsquos determination of the meaning of the words to which no reply was received On 14 December 2000 LKY filed an application under O 14 r 12 of the Rules of Court for an order that the meaning of the defamatory words in the present action was that as found by the Court of Appeal (lsquoLKYrsquos applicationrsquo) JBJ then applied to strike out the present action for want of prosecution which was dismissed by both the senior assistant registrar and the High Court He appealed

Held dismissing the appeal(1) JBJrsquos contention that LKY failed to comply with O 3 r 5 of the Rules of Court was rejected as s 16(1)(c) of the Interpretation Act (Cap 1 1999 Ed) was not applicable First s 16(2) c concerned only substantive and not procedural rights and amendments to procedural rules affected the rights of parties retrospectively Second a lsquocontrary intentionrsquo was expressed in the Rules of Court as to the preservation of rights under O 3 r 5 by virtue of O 21 r 2(6) and (7) which were enacted simultaneously with the repeal of O 3 r 5 Additionally r 2(6) was further amended and applied to the present action by virtue of r 2(7) Section 18 did not apply as well as it related to the expiration and not repeal of written law(2) LKYrsquos application was necessary and was a genuine step or proceeding in the action for the purposes of O 21 r 2(6) as JBJ unlike LKY never agreed to abide by the courtrsquos determination of the meaning of the defamatory words(3) An action would be struck out or dismissed for want of prosecution where ndash (a) the plaintiffrsquos default had been intentional and contumelious (b) there had been inordinate and inexcusable delay on the plaintiffrsquos or his lawyerrsquos part giving rise to a substantial risk that a fair trial was impossible or that the defendant would suffer serious prejudice or (c) there had been an abuse of court process such as wholesale disregard of the rules of court or court procedure if so it was unnecessary to consider whether the limitation period had expired or for the defendant to invoke either limb of the principles laid down in Birkett v James(4) An action would not normally be struck out for inordinate and inexcusable delay if the limitation period applicable to the action had not expired and fresh proceedings for the same cause of action could still be brought as the fresh proceedings would simply cause more expense and delay(5) Although LKY should have but did not applied for a fresh date for the trial of the present action such default or inaction was not contumelious conduct Further the absence of explanation as to why no action was taken did not give rise to an inference of such conduct There was no evidence that ndash (a) LKYrsquos conduct was intentional and contumelious or (b) he had disobeyed any court order or procedure or rules of court and neither did JBJ show that LKY had acted in such a way(6) LKYrsquos delay was inordinate and inexcusable as it was long and no reason or explanation was given as to why no application was made for a fresh trial date(7) LKYrsquos delay did not give rise to a substantial risk that a fair trial was impossible or that serious prejudice would be caused to JBJ In contesting the present action none of JBJrsquos defences would be prejudiced by the delay nor would it prejudice a fair trial of any of the issues involved The unavailability of the particular Queenrsquos Counsel sought by JBJ did not amount to prejudice as he could have engaged other Queenrsquos Counsels to represent him Furthermore the delay was not an abuse of court process as there was no breach of or non-compliance with any court order or procedure or rules of court(8) Even if LKYrsquos action was struck out he could bring fresh proceedings based on the same cause of action as the limitation period in the present action had not expired Hence striking out would be of no benefit to JBJ and would only result in further costs and expenses being incurred

Per CuriamDeliberate failure to comply with an order of court or a series of separate inordinate and inexcusable delays in complete disregard of the rules of court and with full awareness of the consequences amounted to

contumelious conduct Such conduct also involved an element of scorn and intentional disregard of the rules of court or a court order

The Tokai Maru [1998] 3 SLR 105FactsThe respondents (ldquothe ownersrdquo) were the owners of a vessel the lsquoTokai Marursquo The first appellants (ldquothe main charterersrdquo) chartered the vessel from the owners and sub-chartered it to the plaintiffs (ldquothe sub-charterersrdquo) who placed their goods on board the vessel During the sub-charter the owners withdrew the vessel from the main charterers made off with the sub-charterersrsquo goods and sold part of the goodsThe sub-charterers sued the owners for conversion of their goods The owners alleged in their defence that the main charterers had instructed them with regard to the sale The owners commenced third party proceedings against the main charterers An order of court was made on a third party summons requiring the main charterers inter alia to file and exchange the affidavits of evidence-in-chief of their witnesses within four months The main charterers delayed filing their affidavit by nine months and applied for a retrospective extension of time Meanwhile the owners applied to strike out the main charterersrsquo defence The trial judge disallowed the main charterersrsquo application for an extension of time on the ground that the delay was not justified He also ordered their defence be struck out on the ground that their pleadings disclosed no reasonable defence The main charterers appealed against both decisionsHeld allowing the appeals(1) On the issue whether an extension of time should have been granted the trial judfersquos adoption of the approach in Ratnam v Cumarasamy was rejected as the instant case concerned an application to file an affidavit out of time and not an application to appeal out of time(2) Both the main charterersrsquo application and the ownersrsquo application were inextricably linked in that the main charterersrsquo defence would naturally be struck out if the application to extend time was refused Both applications should therefore be considered together in determining what justice required and the case was best viewed in the round(3) The rules of civil procedure guided the courts and litigants towards the just resolution of the case and should be adhered to Nonetheless a litigant should not be deprived of his opportunity to dispute the plaintiffrsquos claims and had a determination of issues on the merits as a punishment for a breach of these rules unless the other party had been made to suffer prejudice which could not be compensated for by an appropriate order as to costs(4) Save in special cases or exceptional circumstances it could rarely be appropriate then on an overall assessment of what justice required to deny a defendant an extension of time where suchdenial would have the effect of depriving him of his defence This was especially so when it was due to a procedural default even if unjustified which caused the plaintiff no prejudice for which he could not be compensated by an award of costs(5) As to whether the delay of nine months was justified a mere assertion that the person in charge of the action forgot about the matter or neglected it or was too busy to get on with it was not an acceptable explanation for the delay The main charterersrsquo explanations were unsatisfactory and the delay was unjustified(6) The court did not characterise the delay as an abuse of process The order with which the main charterers failed to comply was of a non-peremptory nature The outcome might had been different if the order have been an lsquounless orderrsquo The delay caused no prejudice to the owners Nor were the circumstances so exceptional as to warrant dismissing the application for an extension of time(7) A reasonable defence meant one which had some chance of success when only the allegations in the pleadings were considered The hearing of the application should not therefore involve a minute examination of the documents or the facts of the case in order to see whether there was a reasonable defence To do that was to usurp the position of the trial judge and the result was a trial in chambers on affidavits only with discovery and without oral evidence tested by cross-examination in the ordinary way The mere fact that the defence was weak and not likely to succeed was no ground for striking it out so long as the pleadings raised some questions to be decided by the court In short the defence had to be obviously unsustainable on its face to justify an application to strike out In this case the main charterers had a reasonable defence on the face of the pleadings The mainstay of the defence was a simple denial that they were the bailees of the sub-charterersrsquo goods that they had misrepresented to the owners that they were the owners of the marine gas oil that they had not authorised the sale of the oil and that they did not owe any money to the owners These assertions if proven at the trial would afford a full defence

3 Grds for reinstating action

- On application Court may reinstate the action or allow it to proceed on terms it thinks just - O 21 r 2(8)

- See generally Joshua Benjamin Jeyaretnam v Lee Kuan Yew [2001] 4 SLR 1 ndash application to strike out claim was dismissed ndash DECIDED under old regime At time order in force Lapse of 2 yrs and 4 mths when plaintiffs (PAP) had not taken step in proceedgs JBJ took action

to strike it out Court held that that main consideraitn was whther def was prejudiced by sth and tis cannotbe compensated in costs Eg witness died in the meantime Other considetion ndash whether rlimitation period expired

Main considerations - i defendant had failed to show that he was prejudiced by the delay (namely prejudice not

compensatable by costs) and ii limitation period for the Plaintiffrsquos action had not expired therefore Plaintiff was at

liberty to bring the action again even if struck out and this would only incur further costs- note ndash plaintiffrsquos case struck out He applies to revive action He manages to show that imitation period not

expired and you are not prejudiced This does not mean game over for def you can show abuse of process -gt

- Abuse of process and contumelions conduct (a wholesale disregard for the rules) stands on its own =gt can stil strike out even if poaintiff satisfies 1 and 2 above Principles apply as above main principles

This would only be made out in exceptional cases The Tokai Maru [1998] 3 SLR 105 For this head need not show either prejudice or fact of limitation having expired

- Note that pre-writ delay can compound any post-writ delay Birkett James [1978] AC297- Above principles are likely to apply to application to reinstate action under O 24 r 2(8)

(b) actions in which the plaintiff or defendant has applied under Order 18 Rule 22 for trial without pleadings or further pleadings and directions have been given under that Rule (c) actions in which an order has been made under Order 24 Rule 2 for the trial of the issue or question before discovery (d) actions in which directions have been given under Order 29 Rule 7 (e) actions in which an order for the taking of an account has been made under Order 43 Rule 1 (f) actions which have been referred to the Registrar for trial (g) actions for which automatic directions are provided by Rule 8 and (h) non-injury motor accident actions as defined in Order 59 Appendix 2 Part V filed in the Subordinate Courts (3) [Deleted by S 55199]

- conseq of failure of plaintiff to take out SFD O 25 r 1(4)-f

Order 25 rule 1(4) If the plaintiff does not take out a summons for directions in accordance with paragraphs (1) and (2) the defendant or any defendant may do so or apply for an order to dismiss the action (5) On an application by a defendant to dismiss the action under paragraph (4) the Court may either dismiss the action on such terms as may be just or deal with the application as if it were a summons for directions

Law Mun amp Ors V Chua Lai Seng amp Ors [1984] 2 Mlj 328 The first issue here is whether this action which is already part heard should now be

dismissed for the failure of the Plaintiffs to take out a Summons for Directions under O 25 r 1 (4) or for alleged want of prosecution for failure to set down the action for trial or to give notice of trial as provided by O 34 r 2(2) and r 8(1) respectively

hellipThe omission to take out the Summons for Directions was a somewhat more difficult point Mr Suppiah`s argument is that O 25 r 1(1) is mandatory and that O 25 r 1(4) gave the Defendant an option to apply for an order to dismiss the action He seems to imply that not having the privilege of discovery by way of Affidavits of Documents Interrogatories and Inspection had seriously prejudiced the first Defendant in his preparation for the trial of this action

The Plaintiffs on the other hand relied upon O 25 r 2(a) the material words of which read- hellip

My reading of the meaning of these rules is that the application for Summary judgment became a notional Summons for directions when the order granting conditional leave was made and O 25 rr 2 to 7 must be applied mutatis mutandis to this situation It is a misconception for the defendant to contend as was done in this case that O 25 r 1(4) gives him an option only to apply for a dismissal of the action in such a situation The defendant is also entitled under O 25 r 1(4) to apply for any directions he thinks necessary for the proper conduct of the trial and that option was open to him at all material times on and after 16 February 1984 A number of applications were in fact made on behalf of the first Defendant before the hearing date but it was never contended until 17 April 1984 that a Summons for Directions should be taken out

With the greatest respect to Counsel for the first Defendant this was too late to try and turn the clock back Once the trial began the general directions which may have been of moment earlier must of necessity have turned to the specific If there is any particular document that needs to be discovered even at a late stage or any special direction that needs to be issued in the interests of justice the court in a proper case will always entertain the application if not under any specific rules (See eg O 24 rr 7 and 8 O 26 rr 2 and 9) then under the inherent jurisdiction of the court This is not an ordinary case The Affidavits filed in connection with the application for summary judgment were very voluminous on both sides and perhaps one may be excused for having taken the view that both sides had disclosed every document relevant to the claim or the defence as the case may be As Solicitor for both parties one may be excused perhaps for thinking that the first Defendant would have known of the identity and existence of any other documents which were relevant to this matter and have commented on them in his Affidavits if there were such documents in existence But there is no reference to any specific facts or documents in the Affidavit in support of the application before me and I am unable to hold that the Defendant has been prejudiced by the omission to go through the motions of

taking out a Summons for Directions in the present case Accordingly I hold that there is no substance in the first point also

- Application to counterclaims ndash rule 16

Order 25 rule 1(6) In the case of an action which is proceeding only as respects a counterclaim references in this Rule to the plaintiff and defendant shall be construed respectively as references to the party making the counterclaim and the defendant to the counterclaim

- Duty and power of court

Duty to consider all matters (O 25 r 2)2 mdash(1) When the summons for directions first comes to be heard the Court shall consider whether mdash (a) it is possible to deal then with all the matters which by Rules 3 to 7 are required to be considered on the hearing of the summons for directions or (b) it is expedient to adjourn the consideration of all or any of those matters until a later stage (2) If when the summons for directions first comes to be heard the Court considers that it is possible to deal then with all the said matters it shall deal with them forthwith and shall endeavour to secure that all other matters which must or can be dealt with on interlocutory applications and have not already been dealt with are also then dealt with (3) If when the summons for directions first comes to be heard the Court considers that it is expedient to adjourn the consideration of all or any of the matters which by Rules 3 to 7 are required to be considered on the hearing of the summons the Court shall deal forthwith with such of those matters as it considers can conveniently be dealt with forthwith and adjourn the consideration of the remaining matters and shall endeavour to secure that all other matters which must or can be dealt with on interlocutory applications and have not already been dealt with are dealt with either then or at a resumed hearing of the summons for directions (4) If on the summons for directions an action is ordered to be transferred to the Subordinate Courts nothing in this Order shall be construed as requiring the Court to make any further order on the summons (5) If on the summons for directions the action or any question or issue therein is ordered to be tried before the Registrar the Court may without giving any further directions adjourn the summons so that it can be heard by the Registrar and the party required to apply to the Registrar for directions may do so by notice without taking out a fresh summons (6) If the hearing of the summons for directions is adjourned without a day being fixed for the resumed hearing thereof any party may restore it to the list on 2 days notice to the other parties

- 1048708 Principles1 all matters that must or can be dealt with in interlocutory applications and which have not already been dealt

with must be included in a Summons for directions2 only unforeseen matters should be the subject of subsequent interlocutory applications

Auto Clean lsquoNrsquo Shine Services v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409

- Common directions given by courts - Form 461) consolidation2) amendment of pleadings3) further and better particulars4) specific discovery5) interrogatories6) witnesses factual and expert7) affidavits of evidence in chief8) setting down trial period and dates

- interlocutory applications on SFD rule 7Duty to make all interlocutory applications on summons for directions (O 25 r 7)7 mdash(1) Any party to whom the summons for directions is addressed must so far as practicable apply at the hearing of the summons for any order or directions which he may desire as to any matter capable of being dealt with on an interlocutory application in the action and must not less than 7 days before the hearing of the summons serve on the other parties a notice in Form 46 specifying those orders and directions in so far as they differ from the orders and directions asked for by the summons

(2) If the hearing of the summons for directions is adjourned and any party to the proceedings desires to apply at the resumed hearing for any order or directions not asked for by the summons or in any notice given under paragraph (1) he must not less than 7 days before the resumed hearing of the summons serve on the other parties a notice specifying those orders and directions in so far as they differ from the orders and directions asked for by the summons or in any such notice (3) Any application subsequent to the summons for directions and before judgment as to any matter capable of being dealt with on an interlocutory application in the action must be made under the summons by 2 clear days notice to the other party stating the grounds of the application

- 1048708 Automatic directions apply to actions for personal injuries (excluding admiralty and medical negligence) and actions arising out of accidents on land due to a collision or apprehended collision O25 r 8

1048708 NB Does not apply to actions where parties have applied for judgment under O 14 - O 25 r8(7) 1048708 NB For non-injury motor accident actions under O 59 Appendix 2 Part V - O25 r1A

D SETTING DOWN

- 1048708 O 34

Application and interpretation (O 34 r 1)1 This Order applies to actions begun by writ and accordingly reference in this Order to an action shall be construed as references to an action so begun

- 1048708 Time set at summons for directions order 34 rule 21- conseq of failure by plaintiff to set down s34 rule 22

Time for setting down action (O 34 r 2)2 mdash(1) Every order made on a summons for directions shall fix a period within which the plaintiff is to set down the action for trial and must contain an estimate of the length of the trial and specify the number of witnesses if any (2) Where the plaintiff does not within the period fixed under paragraph (1) set down for trial the defendant may set the action down for trial or may apply to the Court to dismiss the action for want of prosecution and on the hearing of any such application the Court may order the action to be dismissed accordingly or may make such order as it thinks just (3) An action set down for trial must contain an estimate of the length of the trial and specify the number of witnesses (if any) and shall subject to any directions under Rule 4 specify the list in which the action is to be put

- docs to be lodged when setting down o34 r3 1048708 File a request in Form 61 and bundle containing writ pleadings previous directions given and a

certificate in Form 62 that all affidavits of evidencein- chief required to be exchanged have been so exchanged

Filing documents when setting down (O 34 r 3)3 mdash(1) In order to set down for trial an action the party setting it down must deliver to the Registrar a request in Form 61 that the action may be set down for trial together with a bundle for the use of the Judge consisting of one copy of each of the following documents (a) the writ (b) the pleadings (including any affidavits ordered to stand as pleadings) any notice or order for particulars and the particulars given (c) all orders made on the summons for directions and (d) a certificate in Form 62 signed by all parties to the action or their solicitors to the effect that all affidavits of the evidence-in-chief of witnesses ordered or required to be exchanged pursuant to Order 25 have been so exchanged (2) The bundle must be bound up in the proper chronological order and have endorsed thereon the names addresses and telephone numbers of the solicitors for the parties or in the case of a party who has no solicitor of the party himself

- 1048708 Notice of setting down to be served on the other parties

Notification of setting down (O 34 r 5)5 mdash(1) A party to an action who sets it down for trial must within 24 hours after doing so notify in Form 63 the other parties to the action that he has done so (2) It shall be the duty of all parties to an action entered in any list to furnish without delay to the Registrar all available information as to the action being or being likely to be settled or affecting the estimated length of the trial and if the action is settled or withdrawn to notify the Registrar of the fact without delay

- docs to be lodged before trial o34 r3A

Filing documents prior to trial (O 34 r 3A)3A mdash(1) The following documents must be filed not less than 5 days before the trial of an action (a) the originals of the affidavit of the evidence-in-chief of all witnesses (b) a bundle of all documents that will be relied on or referred to in the course of the trial by any party including any documents that are exhibited to the affidavits of the evidence-in-chief of all witnesses and (c) where the trial is in the High Court opening statements of all parties as may be prescribed in any practice directions for the time being issued by the Registrar (2) Each party shall file the affidavits of the evidence-in-chief of that partyrsquos witnesses (3) The contents of the bundle of the documents referred to in paragraph (1) (b) shall be agreed on between all parties as far as possible and this bundle of agreed documents shall be filed by the plaintiff (4) If the parties are unable to agree on the inclusion of certain documents those documents on which agreement cannot be reached shall be included in separate bundles and each such bundle shall be filed by the party that intends to rely on or refer to the documents in that bundle at the same time as the bundle of documents referred to in paragraph (1) (b) (5) The documents contained in bundles must be arranged chronologically or in some logical order and must be paginated (6) Care must be taken to avoid duplication within the same bundle (7) The contents and format of every bundle of documents filed in pursuance of this Rule shall comply with the requirements laid down in any practice directions for the time being issued by the Registrar (8) Any party may apply at any time to the Registrar for directions as to the filing bundling and organisation of documents intended to be used at the trial of the action and on such application the Registrar may make such order or give such direction as he thinks is necessary to achieve the just expeditious and economical conduct of the trial of the action

- power of court to make orders and give directions o34 A r1

Directions relating to lists (O 34 r 4)4 Nothing in this Order shall prejudice any power of the Chief Justice or the Senior District Judge as the case may be to give directions mdash (a) specifying the lists in which actions or actions of any class or description are to be set down for trial and providing for the keeping and publication of the lists (b) providing for the determination of a date for the trial of any action which has been set down or a date before which the trial thereof is not to take place and (c) as to the making of applications (whether to a Court or a Judge or the Registrar) to fix vacate or alter any such date and in particular requiring any such application to be supported by an estimate of the length of the trial and any other relevant information

- 1048708 O 34 r 2(2) - where P fails to set down D may set down or may apply to dismiss the action for want of prosecution

- 1048708 Affidavits of evidence-in-chief and bundles of documents to be filed not less than 5 days before trial - O 34 r 3A(1)

E PRE-TRIAL CONFERENCE

Power to make orders and give directions for the just expeditious and economical disposal of proceedings (O 34A r 1)1 mdash(1) Notwithstanding anything in these Rules the Court may at any time after the commencement of any proceedings of its own motion direct any party or parties to those proceedings to appear before it in order that the Court may make such order or give such direction as it thinks fit for the just expeditious and economical disposal of the cause or matter

(1A) Where the Court makes orders or gives directions under paragraph (1) it may take into account whether or not a party has complied with any relevant pre-action protocol or practice direction for the time being issued by the Registrar (2) Where any party fails to comply with any order made or direction given by the Court under paragraph (1) the Court may dismiss the action strike out the defence or counterclaim or make such other order as it thinks fit (3) The Court may in exercising its powers under paragraph (1) make such order as to costs as it thinks fit (4) Any judgment order or direction given or made against any party who does not appear before the Court when directed to do so under paragraph (1) may be set aside or varied by the Court on such terms as it thinks just Pre-trial conferences to be held when directed by the Court (O 34A r 2)2 mdash(1) Without prejudice to Rule 1 at any time before any action or proceedings are tried the Court may direct parties to attend a pre-trial conference relating to the matters arising in the action or proceedings (2) At the pre-trial conference the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with any such information as it thinks fit and may also give all such directions as appear to be necessary or desirable for securing the just expeditious and economical disposal of the action or proceedings (3) The Court having made directions under Rule 2 (2) or Rule 3 may either on its own motion or upon the application of any party if any party defaults in complying with any such directions dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit (4) Any judgment or order made under Rule 2 (3) may be set aside by the Court on the application of the party on such terms if any as it thinks just (5) [Deleted by S 28397] (6) At any time during the pre-trial conference where the parties are agreeable to a settlement of some or all of the matters in dispute in the action or proceedings the Court may enter judgment in the action or proceedings or make such order to give effect to the settlement Notification of pre-trial conferences (O 34A r 3)3 All parties shall be informed of the date and time appointed for the holding of the pre-trial conference by way of a notice in accordance with Form 64 and each party shall comply with any directions contained in such notice Attendance at pre-trial conferences by solicitor or in person as directed by the Court (O 34A r 4)4 Parties to the action or proceedings may be represented at the pre-trial conference by their solicitor if any but may if they so desire with the leave of the Court attend the pre-trial conference personally at the time originally appointed or as adjourned in addition to their solicitor Adjourned and subsequent pre-trial conferences (O 34A r 5)5 A pre-trial conference may be adjourned from time to time either generally or to a particular date as may be appropriate Failure to appear of one or more of the parties (O 34A r 6)6 mdash(1) If at the time appointed for the pre-trial conference one or more of the parties fails to attend the Court may dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such other order as the Court thinks fit (2) An order made by the Court in the absence of a party concerned or affected by the order may be set aside by the Court on the application of that party on such terms as it thinks just (3) Without prejudice to the preceding paragraphs of this Rule where one or more of the parties to the action or proceedings fails to attend the pre-trial conference the Court may if it thinks fit adjourn the conference Non-disclosure (O 34A r 7)7 No communication of facts disclosed or of any matter considered in the course of a pre-trial conference in any action or proceedings shall be made to the Court conducting the trial of the action or proceedings

- 1048708 Failure to appear at a PTC - O 34A r6 ndash action may be struck out - 1048708 Non-disclosure at trial - O 34A r7 ndash informal process Whatever is said in PTC cannot be told to trial

judge ndash but you can use if you reduce it into writing ie get it into a letter so that it becomes correspondence

F DISMISSAL FOR WANT OF PROSECUTION

1 automatic discontinuance ndash order 21 r2- 21 r 2(6) ndash

1 where a year has lapsed since the last step or proceeding in the action the action is deemed to have been discontinued

2 Court may extend the one year period on application of a party prior to the expiration of this period

3 this does not apply if there is a stay order in force

2 grds for dismissal

Jeyaretnam Joshua Benjamin v Lee Kuan Yew [2001] 4 SLR 1Facts

The respondent (lsquoLKYrsquo) and several others separately sued the appellant (lsquoJBJrsquo) for defamation (respectively lsquothe present actionrsquo and lsquoSuit 22597rsquo) Suit 22597 was heard first and judgment was reserved LKY but not JBJ indicated that he agreed to be bound by the courtrsquos determination in Suit 22597 as to the meaning of the defamatory wordsBoth parties in Suit 22597 appealed against the judgersquos decision After the Court of Appeal gave its decision on 17 July 1998 LKY took no further steps or proceedings for some two years and four months On 7 December 2000 LKYrsquos solicitor wrote to JBJrsquos solicitor asking if JBJ agreed with the Court of Appealrsquos determination of the meaning of the words to which no reply was received On 14 December 2000 LKY filed an application under O 14 r 12 of the Rules of Court for an order that the meaning of the defamatory words in the present action was that as found by the Court of Appeal (lsquoLKYrsquos applicationrsquo) JBJ then applied to strike out the present action for want of prosecution which was dismissed by both the senior assistant registrar and the High Court He appealed

Held dismissing the appeal(1) JBJrsquos contention that LKY failed to comply with O 3 r 5 of the Rules of Court was rejected as s 16(1)(c) of the Interpretation Act (Cap 1 1999 Ed) was not applicable First s 16(2) c concerned only substantive and not procedural rights and amendments to procedural rules affected the rights of parties retrospectively Second a lsquocontrary intentionrsquo was expressed in the Rules of Court as to the preservation of rights under O 3 r 5 by virtue of O 21 r 2(6) and (7) which were enacted simultaneously with the repeal of O 3 r 5 Additionally r 2(6) was further amended and applied to the present action by virtue of r 2(7) Section 18 did not apply as well as it related to the expiration and not repeal of written law(2) LKYrsquos application was necessary and was a genuine step or proceeding in the action for the purposes of O 21 r 2(6) as JBJ unlike LKY never agreed to abide by the courtrsquos determination of the meaning of the defamatory words(3) An action would be struck out or dismissed for want of prosecution where ndash (a) the plaintiffrsquos default had been intentional and contumelious (b) there had been inordinate and inexcusable delay on the plaintiffrsquos or his lawyerrsquos part giving rise to a substantial risk that a fair trial was impossible or that the defendant would suffer serious prejudice or (c) there had been an abuse of court process such as wholesale disregard of the rules of court or court procedure if so it was unnecessary to consider whether the limitation period had expired or for the defendant to invoke either limb of the principles laid down in Birkett v James(4) An action would not normally be struck out for inordinate and inexcusable delay if the limitation period applicable to the action had not expired and fresh proceedings for the same cause of action could still be brought as the fresh proceedings would simply cause more expense and delay(5) Although LKY should have but did not applied for a fresh date for the trial of the present action such default or inaction was not contumelious conduct Further the absence of explanation as to why no action was taken did not give rise to an inference of such conduct There was no evidence that ndash (a) LKYrsquos conduct was intentional and contumelious or (b) he had disobeyed any court order or procedure or rules of court and neither did JBJ show that LKY had acted in such a way(6) LKYrsquos delay was inordinate and inexcusable as it was long and no reason or explanation was given as to why no application was made for a fresh trial date(7) LKYrsquos delay did not give rise to a substantial risk that a fair trial was impossible or that serious prejudice would be caused to JBJ In contesting the present action none of JBJrsquos defences would be prejudiced by the delay nor would it prejudice a fair trial of any of the issues involved The unavailability of the particular Queenrsquos Counsel sought by JBJ did not amount to prejudice as he could have engaged other Queenrsquos Counsels to represent him Furthermore the delay was not an abuse of court process as there was no breach of or non-compliance with any court order or procedure or rules of court(8) Even if LKYrsquos action was struck out he could bring fresh proceedings based on the same cause of action as the limitation period in the present action had not expired Hence striking out would be of no benefit to JBJ and would only result in further costs and expenses being incurred

Per CuriamDeliberate failure to comply with an order of court or a series of separate inordinate and inexcusable delays in complete disregard of the rules of court and with full awareness of the consequences amounted to

contumelious conduct Such conduct also involved an element of scorn and intentional disregard of the rules of court or a court order

The Tokai Maru [1998] 3 SLR 105FactsThe respondents (ldquothe ownersrdquo) were the owners of a vessel the lsquoTokai Marursquo The first appellants (ldquothe main charterersrdquo) chartered the vessel from the owners and sub-chartered it to the plaintiffs (ldquothe sub-charterersrdquo) who placed their goods on board the vessel During the sub-charter the owners withdrew the vessel from the main charterers made off with the sub-charterersrsquo goods and sold part of the goodsThe sub-charterers sued the owners for conversion of their goods The owners alleged in their defence that the main charterers had instructed them with regard to the sale The owners commenced third party proceedings against the main charterers An order of court was made on a third party summons requiring the main charterers inter alia to file and exchange the affidavits of evidence-in-chief of their witnesses within four months The main charterers delayed filing their affidavit by nine months and applied for a retrospective extension of time Meanwhile the owners applied to strike out the main charterersrsquo defence The trial judge disallowed the main charterersrsquo application for an extension of time on the ground that the delay was not justified He also ordered their defence be struck out on the ground that their pleadings disclosed no reasonable defence The main charterers appealed against both decisionsHeld allowing the appeals(1) On the issue whether an extension of time should have been granted the trial judfersquos adoption of the approach in Ratnam v Cumarasamy was rejected as the instant case concerned an application to file an affidavit out of time and not an application to appeal out of time(2) Both the main charterersrsquo application and the ownersrsquo application were inextricably linked in that the main charterersrsquo defence would naturally be struck out if the application to extend time was refused Both applications should therefore be considered together in determining what justice required and the case was best viewed in the round(3) The rules of civil procedure guided the courts and litigants towards the just resolution of the case and should be adhered to Nonetheless a litigant should not be deprived of his opportunity to dispute the plaintiffrsquos claims and had a determination of issues on the merits as a punishment for a breach of these rules unless the other party had been made to suffer prejudice which could not be compensated for by an appropriate order as to costs(4) Save in special cases or exceptional circumstances it could rarely be appropriate then on an overall assessment of what justice required to deny a defendant an extension of time where suchdenial would have the effect of depriving him of his defence This was especially so when it was due to a procedural default even if unjustified which caused the plaintiff no prejudice for which he could not be compensated by an award of costs(5) As to whether the delay of nine months was justified a mere assertion that the person in charge of the action forgot about the matter or neglected it or was too busy to get on with it was not an acceptable explanation for the delay The main charterersrsquo explanations were unsatisfactory and the delay was unjustified(6) The court did not characterise the delay as an abuse of process The order with which the main charterers failed to comply was of a non-peremptory nature The outcome might had been different if the order have been an lsquounless orderrsquo The delay caused no prejudice to the owners Nor were the circumstances so exceptional as to warrant dismissing the application for an extension of time(7) A reasonable defence meant one which had some chance of success when only the allegations in the pleadings were considered The hearing of the application should not therefore involve a minute examination of the documents or the facts of the case in order to see whether there was a reasonable defence To do that was to usurp the position of the trial judge and the result was a trial in chambers on affidavits only with discovery and without oral evidence tested by cross-examination in the ordinary way The mere fact that the defence was weak and not likely to succeed was no ground for striking it out so long as the pleadings raised some questions to be decided by the court In short the defence had to be obviously unsustainable on its face to justify an application to strike out In this case the main charterers had a reasonable defence on the face of the pleadings The mainstay of the defence was a simple denial that they were the bailees of the sub-charterersrsquo goods that they had misrepresented to the owners that they were the owners of the marine gas oil that they had not authorised the sale of the oil and that they did not owe any money to the owners These assertions if proven at the trial would afford a full defence

3 Grds for reinstating action

- On application Court may reinstate the action or allow it to proceed on terms it thinks just - O 21 r 2(8)

- See generally Joshua Benjamin Jeyaretnam v Lee Kuan Yew [2001] 4 SLR 1 ndash application to strike out claim was dismissed ndash DECIDED under old regime At time order in force Lapse of 2 yrs and 4 mths when plaintiffs (PAP) had not taken step in proceedgs JBJ took action

to strike it out Court held that that main consideraitn was whther def was prejudiced by sth and tis cannotbe compensated in costs Eg witness died in the meantime Other considetion ndash whether rlimitation period expired

Main considerations - i defendant had failed to show that he was prejudiced by the delay (namely prejudice not

compensatable by costs) and ii limitation period for the Plaintiffrsquos action had not expired therefore Plaintiff was at

liberty to bring the action again even if struck out and this would only incur further costs- note ndash plaintiffrsquos case struck out He applies to revive action He manages to show that imitation period not

expired and you are not prejudiced This does not mean game over for def you can show abuse of process -gt

- Abuse of process and contumelions conduct (a wholesale disregard for the rules) stands on its own =gt can stil strike out even if poaintiff satisfies 1 and 2 above Principles apply as above main principles

This would only be made out in exceptional cases The Tokai Maru [1998] 3 SLR 105 For this head need not show either prejudice or fact of limitation having expired

- Note that pre-writ delay can compound any post-writ delay Birkett James [1978] AC297- Above principles are likely to apply to application to reinstate action under O 24 r 2(8)

taking out a Summons for Directions in the present case Accordingly I hold that there is no substance in the first point also

- Application to counterclaims ndash rule 16

Order 25 rule 1(6) In the case of an action which is proceeding only as respects a counterclaim references in this Rule to the plaintiff and defendant shall be construed respectively as references to the party making the counterclaim and the defendant to the counterclaim

- Duty and power of court

Duty to consider all matters (O 25 r 2)2 mdash(1) When the summons for directions first comes to be heard the Court shall consider whether mdash (a) it is possible to deal then with all the matters which by Rules 3 to 7 are required to be considered on the hearing of the summons for directions or (b) it is expedient to adjourn the consideration of all or any of those matters until a later stage (2) If when the summons for directions first comes to be heard the Court considers that it is possible to deal then with all the said matters it shall deal with them forthwith and shall endeavour to secure that all other matters which must or can be dealt with on interlocutory applications and have not already been dealt with are also then dealt with (3) If when the summons for directions first comes to be heard the Court considers that it is expedient to adjourn the consideration of all or any of the matters which by Rules 3 to 7 are required to be considered on the hearing of the summons the Court shall deal forthwith with such of those matters as it considers can conveniently be dealt with forthwith and adjourn the consideration of the remaining matters and shall endeavour to secure that all other matters which must or can be dealt with on interlocutory applications and have not already been dealt with are dealt with either then or at a resumed hearing of the summons for directions (4) If on the summons for directions an action is ordered to be transferred to the Subordinate Courts nothing in this Order shall be construed as requiring the Court to make any further order on the summons (5) If on the summons for directions the action or any question or issue therein is ordered to be tried before the Registrar the Court may without giving any further directions adjourn the summons so that it can be heard by the Registrar and the party required to apply to the Registrar for directions may do so by notice without taking out a fresh summons (6) If the hearing of the summons for directions is adjourned without a day being fixed for the resumed hearing thereof any party may restore it to the list on 2 days notice to the other parties

- 1048708 Principles1 all matters that must or can be dealt with in interlocutory applications and which have not already been dealt

with must be included in a Summons for directions2 only unforeseen matters should be the subject of subsequent interlocutory applications

Auto Clean lsquoNrsquo Shine Services v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409

- Common directions given by courts - Form 461) consolidation2) amendment of pleadings3) further and better particulars4) specific discovery5) interrogatories6) witnesses factual and expert7) affidavits of evidence in chief8) setting down trial period and dates

- interlocutory applications on SFD rule 7Duty to make all interlocutory applications on summons for directions (O 25 r 7)7 mdash(1) Any party to whom the summons for directions is addressed must so far as practicable apply at the hearing of the summons for any order or directions which he may desire as to any matter capable of being dealt with on an interlocutory application in the action and must not less than 7 days before the hearing of the summons serve on the other parties a notice in Form 46 specifying those orders and directions in so far as they differ from the orders and directions asked for by the summons

(2) If the hearing of the summons for directions is adjourned and any party to the proceedings desires to apply at the resumed hearing for any order or directions not asked for by the summons or in any notice given under paragraph (1) he must not less than 7 days before the resumed hearing of the summons serve on the other parties a notice specifying those orders and directions in so far as they differ from the orders and directions asked for by the summons or in any such notice (3) Any application subsequent to the summons for directions and before judgment as to any matter capable of being dealt with on an interlocutory application in the action must be made under the summons by 2 clear days notice to the other party stating the grounds of the application

- 1048708 Automatic directions apply to actions for personal injuries (excluding admiralty and medical negligence) and actions arising out of accidents on land due to a collision or apprehended collision O25 r 8

1048708 NB Does not apply to actions where parties have applied for judgment under O 14 - O 25 r8(7) 1048708 NB For non-injury motor accident actions under O 59 Appendix 2 Part V - O25 r1A

D SETTING DOWN

- 1048708 O 34

Application and interpretation (O 34 r 1)1 This Order applies to actions begun by writ and accordingly reference in this Order to an action shall be construed as references to an action so begun

- 1048708 Time set at summons for directions order 34 rule 21- conseq of failure by plaintiff to set down s34 rule 22

Time for setting down action (O 34 r 2)2 mdash(1) Every order made on a summons for directions shall fix a period within which the plaintiff is to set down the action for trial and must contain an estimate of the length of the trial and specify the number of witnesses if any (2) Where the plaintiff does not within the period fixed under paragraph (1) set down for trial the defendant may set the action down for trial or may apply to the Court to dismiss the action for want of prosecution and on the hearing of any such application the Court may order the action to be dismissed accordingly or may make such order as it thinks just (3) An action set down for trial must contain an estimate of the length of the trial and specify the number of witnesses (if any) and shall subject to any directions under Rule 4 specify the list in which the action is to be put

- docs to be lodged when setting down o34 r3 1048708 File a request in Form 61 and bundle containing writ pleadings previous directions given and a

certificate in Form 62 that all affidavits of evidencein- chief required to be exchanged have been so exchanged

Filing documents when setting down (O 34 r 3)3 mdash(1) In order to set down for trial an action the party setting it down must deliver to the Registrar a request in Form 61 that the action may be set down for trial together with a bundle for the use of the Judge consisting of one copy of each of the following documents (a) the writ (b) the pleadings (including any affidavits ordered to stand as pleadings) any notice or order for particulars and the particulars given (c) all orders made on the summons for directions and (d) a certificate in Form 62 signed by all parties to the action or their solicitors to the effect that all affidavits of the evidence-in-chief of witnesses ordered or required to be exchanged pursuant to Order 25 have been so exchanged (2) The bundle must be bound up in the proper chronological order and have endorsed thereon the names addresses and telephone numbers of the solicitors for the parties or in the case of a party who has no solicitor of the party himself

- 1048708 Notice of setting down to be served on the other parties

Notification of setting down (O 34 r 5)5 mdash(1) A party to an action who sets it down for trial must within 24 hours after doing so notify in Form 63 the other parties to the action that he has done so (2) It shall be the duty of all parties to an action entered in any list to furnish without delay to the Registrar all available information as to the action being or being likely to be settled or affecting the estimated length of the trial and if the action is settled or withdrawn to notify the Registrar of the fact without delay

- docs to be lodged before trial o34 r3A

Filing documents prior to trial (O 34 r 3A)3A mdash(1) The following documents must be filed not less than 5 days before the trial of an action (a) the originals of the affidavit of the evidence-in-chief of all witnesses (b) a bundle of all documents that will be relied on or referred to in the course of the trial by any party including any documents that are exhibited to the affidavits of the evidence-in-chief of all witnesses and (c) where the trial is in the High Court opening statements of all parties as may be prescribed in any practice directions for the time being issued by the Registrar (2) Each party shall file the affidavits of the evidence-in-chief of that partyrsquos witnesses (3) The contents of the bundle of the documents referred to in paragraph (1) (b) shall be agreed on between all parties as far as possible and this bundle of agreed documents shall be filed by the plaintiff (4) If the parties are unable to agree on the inclusion of certain documents those documents on which agreement cannot be reached shall be included in separate bundles and each such bundle shall be filed by the party that intends to rely on or refer to the documents in that bundle at the same time as the bundle of documents referred to in paragraph (1) (b) (5) The documents contained in bundles must be arranged chronologically or in some logical order and must be paginated (6) Care must be taken to avoid duplication within the same bundle (7) The contents and format of every bundle of documents filed in pursuance of this Rule shall comply with the requirements laid down in any practice directions for the time being issued by the Registrar (8) Any party may apply at any time to the Registrar for directions as to the filing bundling and organisation of documents intended to be used at the trial of the action and on such application the Registrar may make such order or give such direction as he thinks is necessary to achieve the just expeditious and economical conduct of the trial of the action

- power of court to make orders and give directions o34 A r1

Directions relating to lists (O 34 r 4)4 Nothing in this Order shall prejudice any power of the Chief Justice or the Senior District Judge as the case may be to give directions mdash (a) specifying the lists in which actions or actions of any class or description are to be set down for trial and providing for the keeping and publication of the lists (b) providing for the determination of a date for the trial of any action which has been set down or a date before which the trial thereof is not to take place and (c) as to the making of applications (whether to a Court or a Judge or the Registrar) to fix vacate or alter any such date and in particular requiring any such application to be supported by an estimate of the length of the trial and any other relevant information

- 1048708 O 34 r 2(2) - where P fails to set down D may set down or may apply to dismiss the action for want of prosecution

- 1048708 Affidavits of evidence-in-chief and bundles of documents to be filed not less than 5 days before trial - O 34 r 3A(1)

E PRE-TRIAL CONFERENCE

Power to make orders and give directions for the just expeditious and economical disposal of proceedings (O 34A r 1)1 mdash(1) Notwithstanding anything in these Rules the Court may at any time after the commencement of any proceedings of its own motion direct any party or parties to those proceedings to appear before it in order that the Court may make such order or give such direction as it thinks fit for the just expeditious and economical disposal of the cause or matter

(1A) Where the Court makes orders or gives directions under paragraph (1) it may take into account whether or not a party has complied with any relevant pre-action protocol or practice direction for the time being issued by the Registrar (2) Where any party fails to comply with any order made or direction given by the Court under paragraph (1) the Court may dismiss the action strike out the defence or counterclaim or make such other order as it thinks fit (3) The Court may in exercising its powers under paragraph (1) make such order as to costs as it thinks fit (4) Any judgment order or direction given or made against any party who does not appear before the Court when directed to do so under paragraph (1) may be set aside or varied by the Court on such terms as it thinks just Pre-trial conferences to be held when directed by the Court (O 34A r 2)2 mdash(1) Without prejudice to Rule 1 at any time before any action or proceedings are tried the Court may direct parties to attend a pre-trial conference relating to the matters arising in the action or proceedings (2) At the pre-trial conference the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with any such information as it thinks fit and may also give all such directions as appear to be necessary or desirable for securing the just expeditious and economical disposal of the action or proceedings (3) The Court having made directions under Rule 2 (2) or Rule 3 may either on its own motion or upon the application of any party if any party defaults in complying with any such directions dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit (4) Any judgment or order made under Rule 2 (3) may be set aside by the Court on the application of the party on such terms if any as it thinks just (5) [Deleted by S 28397] (6) At any time during the pre-trial conference where the parties are agreeable to a settlement of some or all of the matters in dispute in the action or proceedings the Court may enter judgment in the action or proceedings or make such order to give effect to the settlement Notification of pre-trial conferences (O 34A r 3)3 All parties shall be informed of the date and time appointed for the holding of the pre-trial conference by way of a notice in accordance with Form 64 and each party shall comply with any directions contained in such notice Attendance at pre-trial conferences by solicitor or in person as directed by the Court (O 34A r 4)4 Parties to the action or proceedings may be represented at the pre-trial conference by their solicitor if any but may if they so desire with the leave of the Court attend the pre-trial conference personally at the time originally appointed or as adjourned in addition to their solicitor Adjourned and subsequent pre-trial conferences (O 34A r 5)5 A pre-trial conference may be adjourned from time to time either generally or to a particular date as may be appropriate Failure to appear of one or more of the parties (O 34A r 6)6 mdash(1) If at the time appointed for the pre-trial conference one or more of the parties fails to attend the Court may dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such other order as the Court thinks fit (2) An order made by the Court in the absence of a party concerned or affected by the order may be set aside by the Court on the application of that party on such terms as it thinks just (3) Without prejudice to the preceding paragraphs of this Rule where one or more of the parties to the action or proceedings fails to attend the pre-trial conference the Court may if it thinks fit adjourn the conference Non-disclosure (O 34A r 7)7 No communication of facts disclosed or of any matter considered in the course of a pre-trial conference in any action or proceedings shall be made to the Court conducting the trial of the action or proceedings

- 1048708 Failure to appear at a PTC - O 34A r6 ndash action may be struck out - 1048708 Non-disclosure at trial - O 34A r7 ndash informal process Whatever is said in PTC cannot be told to trial

judge ndash but you can use if you reduce it into writing ie get it into a letter so that it becomes correspondence

F DISMISSAL FOR WANT OF PROSECUTION

1 automatic discontinuance ndash order 21 r2- 21 r 2(6) ndash

1 where a year has lapsed since the last step or proceeding in the action the action is deemed to have been discontinued

2 Court may extend the one year period on application of a party prior to the expiration of this period

3 this does not apply if there is a stay order in force

2 grds for dismissal

Jeyaretnam Joshua Benjamin v Lee Kuan Yew [2001] 4 SLR 1Facts

The respondent (lsquoLKYrsquo) and several others separately sued the appellant (lsquoJBJrsquo) for defamation (respectively lsquothe present actionrsquo and lsquoSuit 22597rsquo) Suit 22597 was heard first and judgment was reserved LKY but not JBJ indicated that he agreed to be bound by the courtrsquos determination in Suit 22597 as to the meaning of the defamatory wordsBoth parties in Suit 22597 appealed against the judgersquos decision After the Court of Appeal gave its decision on 17 July 1998 LKY took no further steps or proceedings for some two years and four months On 7 December 2000 LKYrsquos solicitor wrote to JBJrsquos solicitor asking if JBJ agreed with the Court of Appealrsquos determination of the meaning of the words to which no reply was received On 14 December 2000 LKY filed an application under O 14 r 12 of the Rules of Court for an order that the meaning of the defamatory words in the present action was that as found by the Court of Appeal (lsquoLKYrsquos applicationrsquo) JBJ then applied to strike out the present action for want of prosecution which was dismissed by both the senior assistant registrar and the High Court He appealed

Held dismissing the appeal(1) JBJrsquos contention that LKY failed to comply with O 3 r 5 of the Rules of Court was rejected as s 16(1)(c) of the Interpretation Act (Cap 1 1999 Ed) was not applicable First s 16(2) c concerned only substantive and not procedural rights and amendments to procedural rules affected the rights of parties retrospectively Second a lsquocontrary intentionrsquo was expressed in the Rules of Court as to the preservation of rights under O 3 r 5 by virtue of O 21 r 2(6) and (7) which were enacted simultaneously with the repeal of O 3 r 5 Additionally r 2(6) was further amended and applied to the present action by virtue of r 2(7) Section 18 did not apply as well as it related to the expiration and not repeal of written law(2) LKYrsquos application was necessary and was a genuine step or proceeding in the action for the purposes of O 21 r 2(6) as JBJ unlike LKY never agreed to abide by the courtrsquos determination of the meaning of the defamatory words(3) An action would be struck out or dismissed for want of prosecution where ndash (a) the plaintiffrsquos default had been intentional and contumelious (b) there had been inordinate and inexcusable delay on the plaintiffrsquos or his lawyerrsquos part giving rise to a substantial risk that a fair trial was impossible or that the defendant would suffer serious prejudice or (c) there had been an abuse of court process such as wholesale disregard of the rules of court or court procedure if so it was unnecessary to consider whether the limitation period had expired or for the defendant to invoke either limb of the principles laid down in Birkett v James(4) An action would not normally be struck out for inordinate and inexcusable delay if the limitation period applicable to the action had not expired and fresh proceedings for the same cause of action could still be brought as the fresh proceedings would simply cause more expense and delay(5) Although LKY should have but did not applied for a fresh date for the trial of the present action such default or inaction was not contumelious conduct Further the absence of explanation as to why no action was taken did not give rise to an inference of such conduct There was no evidence that ndash (a) LKYrsquos conduct was intentional and contumelious or (b) he had disobeyed any court order or procedure or rules of court and neither did JBJ show that LKY had acted in such a way(6) LKYrsquos delay was inordinate and inexcusable as it was long and no reason or explanation was given as to why no application was made for a fresh trial date(7) LKYrsquos delay did not give rise to a substantial risk that a fair trial was impossible or that serious prejudice would be caused to JBJ In contesting the present action none of JBJrsquos defences would be prejudiced by the delay nor would it prejudice a fair trial of any of the issues involved The unavailability of the particular Queenrsquos Counsel sought by JBJ did not amount to prejudice as he could have engaged other Queenrsquos Counsels to represent him Furthermore the delay was not an abuse of court process as there was no breach of or non-compliance with any court order or procedure or rules of court(8) Even if LKYrsquos action was struck out he could bring fresh proceedings based on the same cause of action as the limitation period in the present action had not expired Hence striking out would be of no benefit to JBJ and would only result in further costs and expenses being incurred

Per CuriamDeliberate failure to comply with an order of court or a series of separate inordinate and inexcusable delays in complete disregard of the rules of court and with full awareness of the consequences amounted to

contumelious conduct Such conduct also involved an element of scorn and intentional disregard of the rules of court or a court order

The Tokai Maru [1998] 3 SLR 105FactsThe respondents (ldquothe ownersrdquo) were the owners of a vessel the lsquoTokai Marursquo The first appellants (ldquothe main charterersrdquo) chartered the vessel from the owners and sub-chartered it to the plaintiffs (ldquothe sub-charterersrdquo) who placed their goods on board the vessel During the sub-charter the owners withdrew the vessel from the main charterers made off with the sub-charterersrsquo goods and sold part of the goodsThe sub-charterers sued the owners for conversion of their goods The owners alleged in their defence that the main charterers had instructed them with regard to the sale The owners commenced third party proceedings against the main charterers An order of court was made on a third party summons requiring the main charterers inter alia to file and exchange the affidavits of evidence-in-chief of their witnesses within four months The main charterers delayed filing their affidavit by nine months and applied for a retrospective extension of time Meanwhile the owners applied to strike out the main charterersrsquo defence The trial judge disallowed the main charterersrsquo application for an extension of time on the ground that the delay was not justified He also ordered their defence be struck out on the ground that their pleadings disclosed no reasonable defence The main charterers appealed against both decisionsHeld allowing the appeals(1) On the issue whether an extension of time should have been granted the trial judfersquos adoption of the approach in Ratnam v Cumarasamy was rejected as the instant case concerned an application to file an affidavit out of time and not an application to appeal out of time(2) Both the main charterersrsquo application and the ownersrsquo application were inextricably linked in that the main charterersrsquo defence would naturally be struck out if the application to extend time was refused Both applications should therefore be considered together in determining what justice required and the case was best viewed in the round(3) The rules of civil procedure guided the courts and litigants towards the just resolution of the case and should be adhered to Nonetheless a litigant should not be deprived of his opportunity to dispute the plaintiffrsquos claims and had a determination of issues on the merits as a punishment for a breach of these rules unless the other party had been made to suffer prejudice which could not be compensated for by an appropriate order as to costs(4) Save in special cases or exceptional circumstances it could rarely be appropriate then on an overall assessment of what justice required to deny a defendant an extension of time where suchdenial would have the effect of depriving him of his defence This was especially so when it was due to a procedural default even if unjustified which caused the plaintiff no prejudice for which he could not be compensated by an award of costs(5) As to whether the delay of nine months was justified a mere assertion that the person in charge of the action forgot about the matter or neglected it or was too busy to get on with it was not an acceptable explanation for the delay The main charterersrsquo explanations were unsatisfactory and the delay was unjustified(6) The court did not characterise the delay as an abuse of process The order with which the main charterers failed to comply was of a non-peremptory nature The outcome might had been different if the order have been an lsquounless orderrsquo The delay caused no prejudice to the owners Nor were the circumstances so exceptional as to warrant dismissing the application for an extension of time(7) A reasonable defence meant one which had some chance of success when only the allegations in the pleadings were considered The hearing of the application should not therefore involve a minute examination of the documents or the facts of the case in order to see whether there was a reasonable defence To do that was to usurp the position of the trial judge and the result was a trial in chambers on affidavits only with discovery and without oral evidence tested by cross-examination in the ordinary way The mere fact that the defence was weak and not likely to succeed was no ground for striking it out so long as the pleadings raised some questions to be decided by the court In short the defence had to be obviously unsustainable on its face to justify an application to strike out In this case the main charterers had a reasonable defence on the face of the pleadings The mainstay of the defence was a simple denial that they were the bailees of the sub-charterersrsquo goods that they had misrepresented to the owners that they were the owners of the marine gas oil that they had not authorised the sale of the oil and that they did not owe any money to the owners These assertions if proven at the trial would afford a full defence

3 Grds for reinstating action

- On application Court may reinstate the action or allow it to proceed on terms it thinks just - O 21 r 2(8)

- See generally Joshua Benjamin Jeyaretnam v Lee Kuan Yew [2001] 4 SLR 1 ndash application to strike out claim was dismissed ndash DECIDED under old regime At time order in force Lapse of 2 yrs and 4 mths when plaintiffs (PAP) had not taken step in proceedgs JBJ took action

to strike it out Court held that that main consideraitn was whther def was prejudiced by sth and tis cannotbe compensated in costs Eg witness died in the meantime Other considetion ndash whether rlimitation period expired

Main considerations - i defendant had failed to show that he was prejudiced by the delay (namely prejudice not

compensatable by costs) and ii limitation period for the Plaintiffrsquos action had not expired therefore Plaintiff was at

liberty to bring the action again even if struck out and this would only incur further costs- note ndash plaintiffrsquos case struck out He applies to revive action He manages to show that imitation period not

expired and you are not prejudiced This does not mean game over for def you can show abuse of process -gt

- Abuse of process and contumelions conduct (a wholesale disregard for the rules) stands on its own =gt can stil strike out even if poaintiff satisfies 1 and 2 above Principles apply as above main principles

This would only be made out in exceptional cases The Tokai Maru [1998] 3 SLR 105 For this head need not show either prejudice or fact of limitation having expired

- Note that pre-writ delay can compound any post-writ delay Birkett James [1978] AC297- Above principles are likely to apply to application to reinstate action under O 24 r 2(8)

(2) If the hearing of the summons for directions is adjourned and any party to the proceedings desires to apply at the resumed hearing for any order or directions not asked for by the summons or in any notice given under paragraph (1) he must not less than 7 days before the resumed hearing of the summons serve on the other parties a notice specifying those orders and directions in so far as they differ from the orders and directions asked for by the summons or in any such notice (3) Any application subsequent to the summons for directions and before judgment as to any matter capable of being dealt with on an interlocutory application in the action must be made under the summons by 2 clear days notice to the other party stating the grounds of the application

- 1048708 Automatic directions apply to actions for personal injuries (excluding admiralty and medical negligence) and actions arising out of accidents on land due to a collision or apprehended collision O25 r 8

1048708 NB Does not apply to actions where parties have applied for judgment under O 14 - O 25 r8(7) 1048708 NB For non-injury motor accident actions under O 59 Appendix 2 Part V - O25 r1A

D SETTING DOWN

- 1048708 O 34

Application and interpretation (O 34 r 1)1 This Order applies to actions begun by writ and accordingly reference in this Order to an action shall be construed as references to an action so begun

- 1048708 Time set at summons for directions order 34 rule 21- conseq of failure by plaintiff to set down s34 rule 22

Time for setting down action (O 34 r 2)2 mdash(1) Every order made on a summons for directions shall fix a period within which the plaintiff is to set down the action for trial and must contain an estimate of the length of the trial and specify the number of witnesses if any (2) Where the plaintiff does not within the period fixed under paragraph (1) set down for trial the defendant may set the action down for trial or may apply to the Court to dismiss the action for want of prosecution and on the hearing of any such application the Court may order the action to be dismissed accordingly or may make such order as it thinks just (3) An action set down for trial must contain an estimate of the length of the trial and specify the number of witnesses (if any) and shall subject to any directions under Rule 4 specify the list in which the action is to be put

- docs to be lodged when setting down o34 r3 1048708 File a request in Form 61 and bundle containing writ pleadings previous directions given and a

certificate in Form 62 that all affidavits of evidencein- chief required to be exchanged have been so exchanged

Filing documents when setting down (O 34 r 3)3 mdash(1) In order to set down for trial an action the party setting it down must deliver to the Registrar a request in Form 61 that the action may be set down for trial together with a bundle for the use of the Judge consisting of one copy of each of the following documents (a) the writ (b) the pleadings (including any affidavits ordered to stand as pleadings) any notice or order for particulars and the particulars given (c) all orders made on the summons for directions and (d) a certificate in Form 62 signed by all parties to the action or their solicitors to the effect that all affidavits of the evidence-in-chief of witnesses ordered or required to be exchanged pursuant to Order 25 have been so exchanged (2) The bundle must be bound up in the proper chronological order and have endorsed thereon the names addresses and telephone numbers of the solicitors for the parties or in the case of a party who has no solicitor of the party himself

- 1048708 Notice of setting down to be served on the other parties

Notification of setting down (O 34 r 5)5 mdash(1) A party to an action who sets it down for trial must within 24 hours after doing so notify in Form 63 the other parties to the action that he has done so (2) It shall be the duty of all parties to an action entered in any list to furnish without delay to the Registrar all available information as to the action being or being likely to be settled or affecting the estimated length of the trial and if the action is settled or withdrawn to notify the Registrar of the fact without delay

- docs to be lodged before trial o34 r3A

Filing documents prior to trial (O 34 r 3A)3A mdash(1) The following documents must be filed not less than 5 days before the trial of an action (a) the originals of the affidavit of the evidence-in-chief of all witnesses (b) a bundle of all documents that will be relied on or referred to in the course of the trial by any party including any documents that are exhibited to the affidavits of the evidence-in-chief of all witnesses and (c) where the trial is in the High Court opening statements of all parties as may be prescribed in any practice directions for the time being issued by the Registrar (2) Each party shall file the affidavits of the evidence-in-chief of that partyrsquos witnesses (3) The contents of the bundle of the documents referred to in paragraph (1) (b) shall be agreed on between all parties as far as possible and this bundle of agreed documents shall be filed by the plaintiff (4) If the parties are unable to agree on the inclusion of certain documents those documents on which agreement cannot be reached shall be included in separate bundles and each such bundle shall be filed by the party that intends to rely on or refer to the documents in that bundle at the same time as the bundle of documents referred to in paragraph (1) (b) (5) The documents contained in bundles must be arranged chronologically or in some logical order and must be paginated (6) Care must be taken to avoid duplication within the same bundle (7) The contents and format of every bundle of documents filed in pursuance of this Rule shall comply with the requirements laid down in any practice directions for the time being issued by the Registrar (8) Any party may apply at any time to the Registrar for directions as to the filing bundling and organisation of documents intended to be used at the trial of the action and on such application the Registrar may make such order or give such direction as he thinks is necessary to achieve the just expeditious and economical conduct of the trial of the action

- power of court to make orders and give directions o34 A r1

Directions relating to lists (O 34 r 4)4 Nothing in this Order shall prejudice any power of the Chief Justice or the Senior District Judge as the case may be to give directions mdash (a) specifying the lists in which actions or actions of any class or description are to be set down for trial and providing for the keeping and publication of the lists (b) providing for the determination of a date for the trial of any action which has been set down or a date before which the trial thereof is not to take place and (c) as to the making of applications (whether to a Court or a Judge or the Registrar) to fix vacate or alter any such date and in particular requiring any such application to be supported by an estimate of the length of the trial and any other relevant information

- 1048708 O 34 r 2(2) - where P fails to set down D may set down or may apply to dismiss the action for want of prosecution

- 1048708 Affidavits of evidence-in-chief and bundles of documents to be filed not less than 5 days before trial - O 34 r 3A(1)

E PRE-TRIAL CONFERENCE

Power to make orders and give directions for the just expeditious and economical disposal of proceedings (O 34A r 1)1 mdash(1) Notwithstanding anything in these Rules the Court may at any time after the commencement of any proceedings of its own motion direct any party or parties to those proceedings to appear before it in order that the Court may make such order or give such direction as it thinks fit for the just expeditious and economical disposal of the cause or matter

(1A) Where the Court makes orders or gives directions under paragraph (1) it may take into account whether or not a party has complied with any relevant pre-action protocol or practice direction for the time being issued by the Registrar (2) Where any party fails to comply with any order made or direction given by the Court under paragraph (1) the Court may dismiss the action strike out the defence or counterclaim or make such other order as it thinks fit (3) The Court may in exercising its powers under paragraph (1) make such order as to costs as it thinks fit (4) Any judgment order or direction given or made against any party who does not appear before the Court when directed to do so under paragraph (1) may be set aside or varied by the Court on such terms as it thinks just Pre-trial conferences to be held when directed by the Court (O 34A r 2)2 mdash(1) Without prejudice to Rule 1 at any time before any action or proceedings are tried the Court may direct parties to attend a pre-trial conference relating to the matters arising in the action or proceedings (2) At the pre-trial conference the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with any such information as it thinks fit and may also give all such directions as appear to be necessary or desirable for securing the just expeditious and economical disposal of the action or proceedings (3) The Court having made directions under Rule 2 (2) or Rule 3 may either on its own motion or upon the application of any party if any party defaults in complying with any such directions dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit (4) Any judgment or order made under Rule 2 (3) may be set aside by the Court on the application of the party on such terms if any as it thinks just (5) [Deleted by S 28397] (6) At any time during the pre-trial conference where the parties are agreeable to a settlement of some or all of the matters in dispute in the action or proceedings the Court may enter judgment in the action or proceedings or make such order to give effect to the settlement Notification of pre-trial conferences (O 34A r 3)3 All parties shall be informed of the date and time appointed for the holding of the pre-trial conference by way of a notice in accordance with Form 64 and each party shall comply with any directions contained in such notice Attendance at pre-trial conferences by solicitor or in person as directed by the Court (O 34A r 4)4 Parties to the action or proceedings may be represented at the pre-trial conference by their solicitor if any but may if they so desire with the leave of the Court attend the pre-trial conference personally at the time originally appointed or as adjourned in addition to their solicitor Adjourned and subsequent pre-trial conferences (O 34A r 5)5 A pre-trial conference may be adjourned from time to time either generally or to a particular date as may be appropriate Failure to appear of one or more of the parties (O 34A r 6)6 mdash(1) If at the time appointed for the pre-trial conference one or more of the parties fails to attend the Court may dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such other order as the Court thinks fit (2) An order made by the Court in the absence of a party concerned or affected by the order may be set aside by the Court on the application of that party on such terms as it thinks just (3) Without prejudice to the preceding paragraphs of this Rule where one or more of the parties to the action or proceedings fails to attend the pre-trial conference the Court may if it thinks fit adjourn the conference Non-disclosure (O 34A r 7)7 No communication of facts disclosed or of any matter considered in the course of a pre-trial conference in any action or proceedings shall be made to the Court conducting the trial of the action or proceedings

- 1048708 Failure to appear at a PTC - O 34A r6 ndash action may be struck out - 1048708 Non-disclosure at trial - O 34A r7 ndash informal process Whatever is said in PTC cannot be told to trial

judge ndash but you can use if you reduce it into writing ie get it into a letter so that it becomes correspondence

F DISMISSAL FOR WANT OF PROSECUTION

1 automatic discontinuance ndash order 21 r2- 21 r 2(6) ndash

1 where a year has lapsed since the last step or proceeding in the action the action is deemed to have been discontinued

2 Court may extend the one year period on application of a party prior to the expiration of this period

3 this does not apply if there is a stay order in force

2 grds for dismissal

Jeyaretnam Joshua Benjamin v Lee Kuan Yew [2001] 4 SLR 1Facts

The respondent (lsquoLKYrsquo) and several others separately sued the appellant (lsquoJBJrsquo) for defamation (respectively lsquothe present actionrsquo and lsquoSuit 22597rsquo) Suit 22597 was heard first and judgment was reserved LKY but not JBJ indicated that he agreed to be bound by the courtrsquos determination in Suit 22597 as to the meaning of the defamatory wordsBoth parties in Suit 22597 appealed against the judgersquos decision After the Court of Appeal gave its decision on 17 July 1998 LKY took no further steps or proceedings for some two years and four months On 7 December 2000 LKYrsquos solicitor wrote to JBJrsquos solicitor asking if JBJ agreed with the Court of Appealrsquos determination of the meaning of the words to which no reply was received On 14 December 2000 LKY filed an application under O 14 r 12 of the Rules of Court for an order that the meaning of the defamatory words in the present action was that as found by the Court of Appeal (lsquoLKYrsquos applicationrsquo) JBJ then applied to strike out the present action for want of prosecution which was dismissed by both the senior assistant registrar and the High Court He appealed

Held dismissing the appeal(1) JBJrsquos contention that LKY failed to comply with O 3 r 5 of the Rules of Court was rejected as s 16(1)(c) of the Interpretation Act (Cap 1 1999 Ed) was not applicable First s 16(2) c concerned only substantive and not procedural rights and amendments to procedural rules affected the rights of parties retrospectively Second a lsquocontrary intentionrsquo was expressed in the Rules of Court as to the preservation of rights under O 3 r 5 by virtue of O 21 r 2(6) and (7) which were enacted simultaneously with the repeal of O 3 r 5 Additionally r 2(6) was further amended and applied to the present action by virtue of r 2(7) Section 18 did not apply as well as it related to the expiration and not repeal of written law(2) LKYrsquos application was necessary and was a genuine step or proceeding in the action for the purposes of O 21 r 2(6) as JBJ unlike LKY never agreed to abide by the courtrsquos determination of the meaning of the defamatory words(3) An action would be struck out or dismissed for want of prosecution where ndash (a) the plaintiffrsquos default had been intentional and contumelious (b) there had been inordinate and inexcusable delay on the plaintiffrsquos or his lawyerrsquos part giving rise to a substantial risk that a fair trial was impossible or that the defendant would suffer serious prejudice or (c) there had been an abuse of court process such as wholesale disregard of the rules of court or court procedure if so it was unnecessary to consider whether the limitation period had expired or for the defendant to invoke either limb of the principles laid down in Birkett v James(4) An action would not normally be struck out for inordinate and inexcusable delay if the limitation period applicable to the action had not expired and fresh proceedings for the same cause of action could still be brought as the fresh proceedings would simply cause more expense and delay(5) Although LKY should have but did not applied for a fresh date for the trial of the present action such default or inaction was not contumelious conduct Further the absence of explanation as to why no action was taken did not give rise to an inference of such conduct There was no evidence that ndash (a) LKYrsquos conduct was intentional and contumelious or (b) he had disobeyed any court order or procedure or rules of court and neither did JBJ show that LKY had acted in such a way(6) LKYrsquos delay was inordinate and inexcusable as it was long and no reason or explanation was given as to why no application was made for a fresh trial date(7) LKYrsquos delay did not give rise to a substantial risk that a fair trial was impossible or that serious prejudice would be caused to JBJ In contesting the present action none of JBJrsquos defences would be prejudiced by the delay nor would it prejudice a fair trial of any of the issues involved The unavailability of the particular Queenrsquos Counsel sought by JBJ did not amount to prejudice as he could have engaged other Queenrsquos Counsels to represent him Furthermore the delay was not an abuse of court process as there was no breach of or non-compliance with any court order or procedure or rules of court(8) Even if LKYrsquos action was struck out he could bring fresh proceedings based on the same cause of action as the limitation period in the present action had not expired Hence striking out would be of no benefit to JBJ and would only result in further costs and expenses being incurred

Per CuriamDeliberate failure to comply with an order of court or a series of separate inordinate and inexcusable delays in complete disregard of the rules of court and with full awareness of the consequences amounted to

contumelious conduct Such conduct also involved an element of scorn and intentional disregard of the rules of court or a court order

The Tokai Maru [1998] 3 SLR 105FactsThe respondents (ldquothe ownersrdquo) were the owners of a vessel the lsquoTokai Marursquo The first appellants (ldquothe main charterersrdquo) chartered the vessel from the owners and sub-chartered it to the plaintiffs (ldquothe sub-charterersrdquo) who placed their goods on board the vessel During the sub-charter the owners withdrew the vessel from the main charterers made off with the sub-charterersrsquo goods and sold part of the goodsThe sub-charterers sued the owners for conversion of their goods The owners alleged in their defence that the main charterers had instructed them with regard to the sale The owners commenced third party proceedings against the main charterers An order of court was made on a third party summons requiring the main charterers inter alia to file and exchange the affidavits of evidence-in-chief of their witnesses within four months The main charterers delayed filing their affidavit by nine months and applied for a retrospective extension of time Meanwhile the owners applied to strike out the main charterersrsquo defence The trial judge disallowed the main charterersrsquo application for an extension of time on the ground that the delay was not justified He also ordered their defence be struck out on the ground that their pleadings disclosed no reasonable defence The main charterers appealed against both decisionsHeld allowing the appeals(1) On the issue whether an extension of time should have been granted the trial judfersquos adoption of the approach in Ratnam v Cumarasamy was rejected as the instant case concerned an application to file an affidavit out of time and not an application to appeal out of time(2) Both the main charterersrsquo application and the ownersrsquo application were inextricably linked in that the main charterersrsquo defence would naturally be struck out if the application to extend time was refused Both applications should therefore be considered together in determining what justice required and the case was best viewed in the round(3) The rules of civil procedure guided the courts and litigants towards the just resolution of the case and should be adhered to Nonetheless a litigant should not be deprived of his opportunity to dispute the plaintiffrsquos claims and had a determination of issues on the merits as a punishment for a breach of these rules unless the other party had been made to suffer prejudice which could not be compensated for by an appropriate order as to costs(4) Save in special cases or exceptional circumstances it could rarely be appropriate then on an overall assessment of what justice required to deny a defendant an extension of time where suchdenial would have the effect of depriving him of his defence This was especially so when it was due to a procedural default even if unjustified which caused the plaintiff no prejudice for which he could not be compensated by an award of costs(5) As to whether the delay of nine months was justified a mere assertion that the person in charge of the action forgot about the matter or neglected it or was too busy to get on with it was not an acceptable explanation for the delay The main charterersrsquo explanations were unsatisfactory and the delay was unjustified(6) The court did not characterise the delay as an abuse of process The order with which the main charterers failed to comply was of a non-peremptory nature The outcome might had been different if the order have been an lsquounless orderrsquo The delay caused no prejudice to the owners Nor were the circumstances so exceptional as to warrant dismissing the application for an extension of time(7) A reasonable defence meant one which had some chance of success when only the allegations in the pleadings were considered The hearing of the application should not therefore involve a minute examination of the documents or the facts of the case in order to see whether there was a reasonable defence To do that was to usurp the position of the trial judge and the result was a trial in chambers on affidavits only with discovery and without oral evidence tested by cross-examination in the ordinary way The mere fact that the defence was weak and not likely to succeed was no ground for striking it out so long as the pleadings raised some questions to be decided by the court In short the defence had to be obviously unsustainable on its face to justify an application to strike out In this case the main charterers had a reasonable defence on the face of the pleadings The mainstay of the defence was a simple denial that they were the bailees of the sub-charterersrsquo goods that they had misrepresented to the owners that they were the owners of the marine gas oil that they had not authorised the sale of the oil and that they did not owe any money to the owners These assertions if proven at the trial would afford a full defence

3 Grds for reinstating action

- On application Court may reinstate the action or allow it to proceed on terms it thinks just - O 21 r 2(8)

- See generally Joshua Benjamin Jeyaretnam v Lee Kuan Yew [2001] 4 SLR 1 ndash application to strike out claim was dismissed ndash DECIDED under old regime At time order in force Lapse of 2 yrs and 4 mths when plaintiffs (PAP) had not taken step in proceedgs JBJ took action

to strike it out Court held that that main consideraitn was whther def was prejudiced by sth and tis cannotbe compensated in costs Eg witness died in the meantime Other considetion ndash whether rlimitation period expired

Main considerations - i defendant had failed to show that he was prejudiced by the delay (namely prejudice not

compensatable by costs) and ii limitation period for the Plaintiffrsquos action had not expired therefore Plaintiff was at

liberty to bring the action again even if struck out and this would only incur further costs- note ndash plaintiffrsquos case struck out He applies to revive action He manages to show that imitation period not

expired and you are not prejudiced This does not mean game over for def you can show abuse of process -gt

- Abuse of process and contumelions conduct (a wholesale disregard for the rules) stands on its own =gt can stil strike out even if poaintiff satisfies 1 and 2 above Principles apply as above main principles

This would only be made out in exceptional cases The Tokai Maru [1998] 3 SLR 105 For this head need not show either prejudice or fact of limitation having expired

- Note that pre-writ delay can compound any post-writ delay Birkett James [1978] AC297- Above principles are likely to apply to application to reinstate action under O 24 r 2(8)

Notification of setting down (O 34 r 5)5 mdash(1) A party to an action who sets it down for trial must within 24 hours after doing so notify in Form 63 the other parties to the action that he has done so (2) It shall be the duty of all parties to an action entered in any list to furnish without delay to the Registrar all available information as to the action being or being likely to be settled or affecting the estimated length of the trial and if the action is settled or withdrawn to notify the Registrar of the fact without delay

- docs to be lodged before trial o34 r3A

Filing documents prior to trial (O 34 r 3A)3A mdash(1) The following documents must be filed not less than 5 days before the trial of an action (a) the originals of the affidavit of the evidence-in-chief of all witnesses (b) a bundle of all documents that will be relied on or referred to in the course of the trial by any party including any documents that are exhibited to the affidavits of the evidence-in-chief of all witnesses and (c) where the trial is in the High Court opening statements of all parties as may be prescribed in any practice directions for the time being issued by the Registrar (2) Each party shall file the affidavits of the evidence-in-chief of that partyrsquos witnesses (3) The contents of the bundle of the documents referred to in paragraph (1) (b) shall be agreed on between all parties as far as possible and this bundle of agreed documents shall be filed by the plaintiff (4) If the parties are unable to agree on the inclusion of certain documents those documents on which agreement cannot be reached shall be included in separate bundles and each such bundle shall be filed by the party that intends to rely on or refer to the documents in that bundle at the same time as the bundle of documents referred to in paragraph (1) (b) (5) The documents contained in bundles must be arranged chronologically or in some logical order and must be paginated (6) Care must be taken to avoid duplication within the same bundle (7) The contents and format of every bundle of documents filed in pursuance of this Rule shall comply with the requirements laid down in any practice directions for the time being issued by the Registrar (8) Any party may apply at any time to the Registrar for directions as to the filing bundling and organisation of documents intended to be used at the trial of the action and on such application the Registrar may make such order or give such direction as he thinks is necessary to achieve the just expeditious and economical conduct of the trial of the action

- power of court to make orders and give directions o34 A r1

Directions relating to lists (O 34 r 4)4 Nothing in this Order shall prejudice any power of the Chief Justice or the Senior District Judge as the case may be to give directions mdash (a) specifying the lists in which actions or actions of any class or description are to be set down for trial and providing for the keeping and publication of the lists (b) providing for the determination of a date for the trial of any action which has been set down or a date before which the trial thereof is not to take place and (c) as to the making of applications (whether to a Court or a Judge or the Registrar) to fix vacate or alter any such date and in particular requiring any such application to be supported by an estimate of the length of the trial and any other relevant information

- 1048708 O 34 r 2(2) - where P fails to set down D may set down or may apply to dismiss the action for want of prosecution

- 1048708 Affidavits of evidence-in-chief and bundles of documents to be filed not less than 5 days before trial - O 34 r 3A(1)

E PRE-TRIAL CONFERENCE

Power to make orders and give directions for the just expeditious and economical disposal of proceedings (O 34A r 1)1 mdash(1) Notwithstanding anything in these Rules the Court may at any time after the commencement of any proceedings of its own motion direct any party or parties to those proceedings to appear before it in order that the Court may make such order or give such direction as it thinks fit for the just expeditious and economical disposal of the cause or matter

(1A) Where the Court makes orders or gives directions under paragraph (1) it may take into account whether or not a party has complied with any relevant pre-action protocol or practice direction for the time being issued by the Registrar (2) Where any party fails to comply with any order made or direction given by the Court under paragraph (1) the Court may dismiss the action strike out the defence or counterclaim or make such other order as it thinks fit (3) The Court may in exercising its powers under paragraph (1) make such order as to costs as it thinks fit (4) Any judgment order or direction given or made against any party who does not appear before the Court when directed to do so under paragraph (1) may be set aside or varied by the Court on such terms as it thinks just Pre-trial conferences to be held when directed by the Court (O 34A r 2)2 mdash(1) Without prejudice to Rule 1 at any time before any action or proceedings are tried the Court may direct parties to attend a pre-trial conference relating to the matters arising in the action or proceedings (2) At the pre-trial conference the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with any such information as it thinks fit and may also give all such directions as appear to be necessary or desirable for securing the just expeditious and economical disposal of the action or proceedings (3) The Court having made directions under Rule 2 (2) or Rule 3 may either on its own motion or upon the application of any party if any party defaults in complying with any such directions dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit (4) Any judgment or order made under Rule 2 (3) may be set aside by the Court on the application of the party on such terms if any as it thinks just (5) [Deleted by S 28397] (6) At any time during the pre-trial conference where the parties are agreeable to a settlement of some or all of the matters in dispute in the action or proceedings the Court may enter judgment in the action or proceedings or make such order to give effect to the settlement Notification of pre-trial conferences (O 34A r 3)3 All parties shall be informed of the date and time appointed for the holding of the pre-trial conference by way of a notice in accordance with Form 64 and each party shall comply with any directions contained in such notice Attendance at pre-trial conferences by solicitor or in person as directed by the Court (O 34A r 4)4 Parties to the action or proceedings may be represented at the pre-trial conference by their solicitor if any but may if they so desire with the leave of the Court attend the pre-trial conference personally at the time originally appointed or as adjourned in addition to their solicitor Adjourned and subsequent pre-trial conferences (O 34A r 5)5 A pre-trial conference may be adjourned from time to time either generally or to a particular date as may be appropriate Failure to appear of one or more of the parties (O 34A r 6)6 mdash(1) If at the time appointed for the pre-trial conference one or more of the parties fails to attend the Court may dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such other order as the Court thinks fit (2) An order made by the Court in the absence of a party concerned or affected by the order may be set aside by the Court on the application of that party on such terms as it thinks just (3) Without prejudice to the preceding paragraphs of this Rule where one or more of the parties to the action or proceedings fails to attend the pre-trial conference the Court may if it thinks fit adjourn the conference Non-disclosure (O 34A r 7)7 No communication of facts disclosed or of any matter considered in the course of a pre-trial conference in any action or proceedings shall be made to the Court conducting the trial of the action or proceedings

- 1048708 Failure to appear at a PTC - O 34A r6 ndash action may be struck out - 1048708 Non-disclosure at trial - O 34A r7 ndash informal process Whatever is said in PTC cannot be told to trial

judge ndash but you can use if you reduce it into writing ie get it into a letter so that it becomes correspondence

F DISMISSAL FOR WANT OF PROSECUTION

1 automatic discontinuance ndash order 21 r2- 21 r 2(6) ndash

1 where a year has lapsed since the last step or proceeding in the action the action is deemed to have been discontinued

2 Court may extend the one year period on application of a party prior to the expiration of this period

3 this does not apply if there is a stay order in force

2 grds for dismissal

Jeyaretnam Joshua Benjamin v Lee Kuan Yew [2001] 4 SLR 1Facts

The respondent (lsquoLKYrsquo) and several others separately sued the appellant (lsquoJBJrsquo) for defamation (respectively lsquothe present actionrsquo and lsquoSuit 22597rsquo) Suit 22597 was heard first and judgment was reserved LKY but not JBJ indicated that he agreed to be bound by the courtrsquos determination in Suit 22597 as to the meaning of the defamatory wordsBoth parties in Suit 22597 appealed against the judgersquos decision After the Court of Appeal gave its decision on 17 July 1998 LKY took no further steps or proceedings for some two years and four months On 7 December 2000 LKYrsquos solicitor wrote to JBJrsquos solicitor asking if JBJ agreed with the Court of Appealrsquos determination of the meaning of the words to which no reply was received On 14 December 2000 LKY filed an application under O 14 r 12 of the Rules of Court for an order that the meaning of the defamatory words in the present action was that as found by the Court of Appeal (lsquoLKYrsquos applicationrsquo) JBJ then applied to strike out the present action for want of prosecution which was dismissed by both the senior assistant registrar and the High Court He appealed

Held dismissing the appeal(1) JBJrsquos contention that LKY failed to comply with O 3 r 5 of the Rules of Court was rejected as s 16(1)(c) of the Interpretation Act (Cap 1 1999 Ed) was not applicable First s 16(2) c concerned only substantive and not procedural rights and amendments to procedural rules affected the rights of parties retrospectively Second a lsquocontrary intentionrsquo was expressed in the Rules of Court as to the preservation of rights under O 3 r 5 by virtue of O 21 r 2(6) and (7) which were enacted simultaneously with the repeal of O 3 r 5 Additionally r 2(6) was further amended and applied to the present action by virtue of r 2(7) Section 18 did not apply as well as it related to the expiration and not repeal of written law(2) LKYrsquos application was necessary and was a genuine step or proceeding in the action for the purposes of O 21 r 2(6) as JBJ unlike LKY never agreed to abide by the courtrsquos determination of the meaning of the defamatory words(3) An action would be struck out or dismissed for want of prosecution where ndash (a) the plaintiffrsquos default had been intentional and contumelious (b) there had been inordinate and inexcusable delay on the plaintiffrsquos or his lawyerrsquos part giving rise to a substantial risk that a fair trial was impossible or that the defendant would suffer serious prejudice or (c) there had been an abuse of court process such as wholesale disregard of the rules of court or court procedure if so it was unnecessary to consider whether the limitation period had expired or for the defendant to invoke either limb of the principles laid down in Birkett v James(4) An action would not normally be struck out for inordinate and inexcusable delay if the limitation period applicable to the action had not expired and fresh proceedings for the same cause of action could still be brought as the fresh proceedings would simply cause more expense and delay(5) Although LKY should have but did not applied for a fresh date for the trial of the present action such default or inaction was not contumelious conduct Further the absence of explanation as to why no action was taken did not give rise to an inference of such conduct There was no evidence that ndash (a) LKYrsquos conduct was intentional and contumelious or (b) he had disobeyed any court order or procedure or rules of court and neither did JBJ show that LKY had acted in such a way(6) LKYrsquos delay was inordinate and inexcusable as it was long and no reason or explanation was given as to why no application was made for a fresh trial date(7) LKYrsquos delay did not give rise to a substantial risk that a fair trial was impossible or that serious prejudice would be caused to JBJ In contesting the present action none of JBJrsquos defences would be prejudiced by the delay nor would it prejudice a fair trial of any of the issues involved The unavailability of the particular Queenrsquos Counsel sought by JBJ did not amount to prejudice as he could have engaged other Queenrsquos Counsels to represent him Furthermore the delay was not an abuse of court process as there was no breach of or non-compliance with any court order or procedure or rules of court(8) Even if LKYrsquos action was struck out he could bring fresh proceedings based on the same cause of action as the limitation period in the present action had not expired Hence striking out would be of no benefit to JBJ and would only result in further costs and expenses being incurred

Per CuriamDeliberate failure to comply with an order of court or a series of separate inordinate and inexcusable delays in complete disregard of the rules of court and with full awareness of the consequences amounted to

contumelious conduct Such conduct also involved an element of scorn and intentional disregard of the rules of court or a court order

The Tokai Maru [1998] 3 SLR 105FactsThe respondents (ldquothe ownersrdquo) were the owners of a vessel the lsquoTokai Marursquo The first appellants (ldquothe main charterersrdquo) chartered the vessel from the owners and sub-chartered it to the plaintiffs (ldquothe sub-charterersrdquo) who placed their goods on board the vessel During the sub-charter the owners withdrew the vessel from the main charterers made off with the sub-charterersrsquo goods and sold part of the goodsThe sub-charterers sued the owners for conversion of their goods The owners alleged in their defence that the main charterers had instructed them with regard to the sale The owners commenced third party proceedings against the main charterers An order of court was made on a third party summons requiring the main charterers inter alia to file and exchange the affidavits of evidence-in-chief of their witnesses within four months The main charterers delayed filing their affidavit by nine months and applied for a retrospective extension of time Meanwhile the owners applied to strike out the main charterersrsquo defence The trial judge disallowed the main charterersrsquo application for an extension of time on the ground that the delay was not justified He also ordered their defence be struck out on the ground that their pleadings disclosed no reasonable defence The main charterers appealed against both decisionsHeld allowing the appeals(1) On the issue whether an extension of time should have been granted the trial judfersquos adoption of the approach in Ratnam v Cumarasamy was rejected as the instant case concerned an application to file an affidavit out of time and not an application to appeal out of time(2) Both the main charterersrsquo application and the ownersrsquo application were inextricably linked in that the main charterersrsquo defence would naturally be struck out if the application to extend time was refused Both applications should therefore be considered together in determining what justice required and the case was best viewed in the round(3) The rules of civil procedure guided the courts and litigants towards the just resolution of the case and should be adhered to Nonetheless a litigant should not be deprived of his opportunity to dispute the plaintiffrsquos claims and had a determination of issues on the merits as a punishment for a breach of these rules unless the other party had been made to suffer prejudice which could not be compensated for by an appropriate order as to costs(4) Save in special cases or exceptional circumstances it could rarely be appropriate then on an overall assessment of what justice required to deny a defendant an extension of time where suchdenial would have the effect of depriving him of his defence This was especially so when it was due to a procedural default even if unjustified which caused the plaintiff no prejudice for which he could not be compensated by an award of costs(5) As to whether the delay of nine months was justified a mere assertion that the person in charge of the action forgot about the matter or neglected it or was too busy to get on with it was not an acceptable explanation for the delay The main charterersrsquo explanations were unsatisfactory and the delay was unjustified(6) The court did not characterise the delay as an abuse of process The order with which the main charterers failed to comply was of a non-peremptory nature The outcome might had been different if the order have been an lsquounless orderrsquo The delay caused no prejudice to the owners Nor were the circumstances so exceptional as to warrant dismissing the application for an extension of time(7) A reasonable defence meant one which had some chance of success when only the allegations in the pleadings were considered The hearing of the application should not therefore involve a minute examination of the documents or the facts of the case in order to see whether there was a reasonable defence To do that was to usurp the position of the trial judge and the result was a trial in chambers on affidavits only with discovery and without oral evidence tested by cross-examination in the ordinary way The mere fact that the defence was weak and not likely to succeed was no ground for striking it out so long as the pleadings raised some questions to be decided by the court In short the defence had to be obviously unsustainable on its face to justify an application to strike out In this case the main charterers had a reasonable defence on the face of the pleadings The mainstay of the defence was a simple denial that they were the bailees of the sub-charterersrsquo goods that they had misrepresented to the owners that they were the owners of the marine gas oil that they had not authorised the sale of the oil and that they did not owe any money to the owners These assertions if proven at the trial would afford a full defence

3 Grds for reinstating action

- On application Court may reinstate the action or allow it to proceed on terms it thinks just - O 21 r 2(8)

- See generally Joshua Benjamin Jeyaretnam v Lee Kuan Yew [2001] 4 SLR 1 ndash application to strike out claim was dismissed ndash DECIDED under old regime At time order in force Lapse of 2 yrs and 4 mths when plaintiffs (PAP) had not taken step in proceedgs JBJ took action

to strike it out Court held that that main consideraitn was whther def was prejudiced by sth and tis cannotbe compensated in costs Eg witness died in the meantime Other considetion ndash whether rlimitation period expired

Main considerations - i defendant had failed to show that he was prejudiced by the delay (namely prejudice not

compensatable by costs) and ii limitation period for the Plaintiffrsquos action had not expired therefore Plaintiff was at

liberty to bring the action again even if struck out and this would only incur further costs- note ndash plaintiffrsquos case struck out He applies to revive action He manages to show that imitation period not

expired and you are not prejudiced This does not mean game over for def you can show abuse of process -gt

- Abuse of process and contumelions conduct (a wholesale disregard for the rules) stands on its own =gt can stil strike out even if poaintiff satisfies 1 and 2 above Principles apply as above main principles

This would only be made out in exceptional cases The Tokai Maru [1998] 3 SLR 105 For this head need not show either prejudice or fact of limitation having expired

- Note that pre-writ delay can compound any post-writ delay Birkett James [1978] AC297- Above principles are likely to apply to application to reinstate action under O 24 r 2(8)

(1A) Where the Court makes orders or gives directions under paragraph (1) it may take into account whether or not a party has complied with any relevant pre-action protocol or practice direction for the time being issued by the Registrar (2) Where any party fails to comply with any order made or direction given by the Court under paragraph (1) the Court may dismiss the action strike out the defence or counterclaim or make such other order as it thinks fit (3) The Court may in exercising its powers under paragraph (1) make such order as to costs as it thinks fit (4) Any judgment order or direction given or made against any party who does not appear before the Court when directed to do so under paragraph (1) may be set aside or varied by the Court on such terms as it thinks just Pre-trial conferences to be held when directed by the Court (O 34A r 2)2 mdash(1) Without prejudice to Rule 1 at any time before any action or proceedings are tried the Court may direct parties to attend a pre-trial conference relating to the matters arising in the action or proceedings (2) At the pre-trial conference the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with any such information as it thinks fit and may also give all such directions as appear to be necessary or desirable for securing the just expeditious and economical disposal of the action or proceedings (3) The Court having made directions under Rule 2 (2) or Rule 3 may either on its own motion or upon the application of any party if any party defaults in complying with any such directions dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit (4) Any judgment or order made under Rule 2 (3) may be set aside by the Court on the application of the party on such terms if any as it thinks just (5) [Deleted by S 28397] (6) At any time during the pre-trial conference where the parties are agreeable to a settlement of some or all of the matters in dispute in the action or proceedings the Court may enter judgment in the action or proceedings or make such order to give effect to the settlement Notification of pre-trial conferences (O 34A r 3)3 All parties shall be informed of the date and time appointed for the holding of the pre-trial conference by way of a notice in accordance with Form 64 and each party shall comply with any directions contained in such notice Attendance at pre-trial conferences by solicitor or in person as directed by the Court (O 34A r 4)4 Parties to the action or proceedings may be represented at the pre-trial conference by their solicitor if any but may if they so desire with the leave of the Court attend the pre-trial conference personally at the time originally appointed or as adjourned in addition to their solicitor Adjourned and subsequent pre-trial conferences (O 34A r 5)5 A pre-trial conference may be adjourned from time to time either generally or to a particular date as may be appropriate Failure to appear of one or more of the parties (O 34A r 6)6 mdash(1) If at the time appointed for the pre-trial conference one or more of the parties fails to attend the Court may dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such other order as the Court thinks fit (2) An order made by the Court in the absence of a party concerned or affected by the order may be set aside by the Court on the application of that party on such terms as it thinks just (3) Without prejudice to the preceding paragraphs of this Rule where one or more of the parties to the action or proceedings fails to attend the pre-trial conference the Court may if it thinks fit adjourn the conference Non-disclosure (O 34A r 7)7 No communication of facts disclosed or of any matter considered in the course of a pre-trial conference in any action or proceedings shall be made to the Court conducting the trial of the action or proceedings

- 1048708 Failure to appear at a PTC - O 34A r6 ndash action may be struck out - 1048708 Non-disclosure at trial - O 34A r7 ndash informal process Whatever is said in PTC cannot be told to trial

judge ndash but you can use if you reduce it into writing ie get it into a letter so that it becomes correspondence

F DISMISSAL FOR WANT OF PROSECUTION

1 automatic discontinuance ndash order 21 r2- 21 r 2(6) ndash

1 where a year has lapsed since the last step or proceeding in the action the action is deemed to have been discontinued

2 Court may extend the one year period on application of a party prior to the expiration of this period

3 this does not apply if there is a stay order in force

2 grds for dismissal

Jeyaretnam Joshua Benjamin v Lee Kuan Yew [2001] 4 SLR 1Facts

The respondent (lsquoLKYrsquo) and several others separately sued the appellant (lsquoJBJrsquo) for defamation (respectively lsquothe present actionrsquo and lsquoSuit 22597rsquo) Suit 22597 was heard first and judgment was reserved LKY but not JBJ indicated that he agreed to be bound by the courtrsquos determination in Suit 22597 as to the meaning of the defamatory wordsBoth parties in Suit 22597 appealed against the judgersquos decision After the Court of Appeal gave its decision on 17 July 1998 LKY took no further steps or proceedings for some two years and four months On 7 December 2000 LKYrsquos solicitor wrote to JBJrsquos solicitor asking if JBJ agreed with the Court of Appealrsquos determination of the meaning of the words to which no reply was received On 14 December 2000 LKY filed an application under O 14 r 12 of the Rules of Court for an order that the meaning of the defamatory words in the present action was that as found by the Court of Appeal (lsquoLKYrsquos applicationrsquo) JBJ then applied to strike out the present action for want of prosecution which was dismissed by both the senior assistant registrar and the High Court He appealed

Held dismissing the appeal(1) JBJrsquos contention that LKY failed to comply with O 3 r 5 of the Rules of Court was rejected as s 16(1)(c) of the Interpretation Act (Cap 1 1999 Ed) was not applicable First s 16(2) c concerned only substantive and not procedural rights and amendments to procedural rules affected the rights of parties retrospectively Second a lsquocontrary intentionrsquo was expressed in the Rules of Court as to the preservation of rights under O 3 r 5 by virtue of O 21 r 2(6) and (7) which were enacted simultaneously with the repeal of O 3 r 5 Additionally r 2(6) was further amended and applied to the present action by virtue of r 2(7) Section 18 did not apply as well as it related to the expiration and not repeal of written law(2) LKYrsquos application was necessary and was a genuine step or proceeding in the action for the purposes of O 21 r 2(6) as JBJ unlike LKY never agreed to abide by the courtrsquos determination of the meaning of the defamatory words(3) An action would be struck out or dismissed for want of prosecution where ndash (a) the plaintiffrsquos default had been intentional and contumelious (b) there had been inordinate and inexcusable delay on the plaintiffrsquos or his lawyerrsquos part giving rise to a substantial risk that a fair trial was impossible or that the defendant would suffer serious prejudice or (c) there had been an abuse of court process such as wholesale disregard of the rules of court or court procedure if so it was unnecessary to consider whether the limitation period had expired or for the defendant to invoke either limb of the principles laid down in Birkett v James(4) An action would not normally be struck out for inordinate and inexcusable delay if the limitation period applicable to the action had not expired and fresh proceedings for the same cause of action could still be brought as the fresh proceedings would simply cause more expense and delay(5) Although LKY should have but did not applied for a fresh date for the trial of the present action such default or inaction was not contumelious conduct Further the absence of explanation as to why no action was taken did not give rise to an inference of such conduct There was no evidence that ndash (a) LKYrsquos conduct was intentional and contumelious or (b) he had disobeyed any court order or procedure or rules of court and neither did JBJ show that LKY had acted in such a way(6) LKYrsquos delay was inordinate and inexcusable as it was long and no reason or explanation was given as to why no application was made for a fresh trial date(7) LKYrsquos delay did not give rise to a substantial risk that a fair trial was impossible or that serious prejudice would be caused to JBJ In contesting the present action none of JBJrsquos defences would be prejudiced by the delay nor would it prejudice a fair trial of any of the issues involved The unavailability of the particular Queenrsquos Counsel sought by JBJ did not amount to prejudice as he could have engaged other Queenrsquos Counsels to represent him Furthermore the delay was not an abuse of court process as there was no breach of or non-compliance with any court order or procedure or rules of court(8) Even if LKYrsquos action was struck out he could bring fresh proceedings based on the same cause of action as the limitation period in the present action had not expired Hence striking out would be of no benefit to JBJ and would only result in further costs and expenses being incurred

Per CuriamDeliberate failure to comply with an order of court or a series of separate inordinate and inexcusable delays in complete disregard of the rules of court and with full awareness of the consequences amounted to

contumelious conduct Such conduct also involved an element of scorn and intentional disregard of the rules of court or a court order

The Tokai Maru [1998] 3 SLR 105FactsThe respondents (ldquothe ownersrdquo) were the owners of a vessel the lsquoTokai Marursquo The first appellants (ldquothe main charterersrdquo) chartered the vessel from the owners and sub-chartered it to the plaintiffs (ldquothe sub-charterersrdquo) who placed their goods on board the vessel During the sub-charter the owners withdrew the vessel from the main charterers made off with the sub-charterersrsquo goods and sold part of the goodsThe sub-charterers sued the owners for conversion of their goods The owners alleged in their defence that the main charterers had instructed them with regard to the sale The owners commenced third party proceedings against the main charterers An order of court was made on a third party summons requiring the main charterers inter alia to file and exchange the affidavits of evidence-in-chief of their witnesses within four months The main charterers delayed filing their affidavit by nine months and applied for a retrospective extension of time Meanwhile the owners applied to strike out the main charterersrsquo defence The trial judge disallowed the main charterersrsquo application for an extension of time on the ground that the delay was not justified He also ordered their defence be struck out on the ground that their pleadings disclosed no reasonable defence The main charterers appealed against both decisionsHeld allowing the appeals(1) On the issue whether an extension of time should have been granted the trial judfersquos adoption of the approach in Ratnam v Cumarasamy was rejected as the instant case concerned an application to file an affidavit out of time and not an application to appeal out of time(2) Both the main charterersrsquo application and the ownersrsquo application were inextricably linked in that the main charterersrsquo defence would naturally be struck out if the application to extend time was refused Both applications should therefore be considered together in determining what justice required and the case was best viewed in the round(3) The rules of civil procedure guided the courts and litigants towards the just resolution of the case and should be adhered to Nonetheless a litigant should not be deprived of his opportunity to dispute the plaintiffrsquos claims and had a determination of issues on the merits as a punishment for a breach of these rules unless the other party had been made to suffer prejudice which could not be compensated for by an appropriate order as to costs(4) Save in special cases or exceptional circumstances it could rarely be appropriate then on an overall assessment of what justice required to deny a defendant an extension of time where suchdenial would have the effect of depriving him of his defence This was especially so when it was due to a procedural default even if unjustified which caused the plaintiff no prejudice for which he could not be compensated by an award of costs(5) As to whether the delay of nine months was justified a mere assertion that the person in charge of the action forgot about the matter or neglected it or was too busy to get on with it was not an acceptable explanation for the delay The main charterersrsquo explanations were unsatisfactory and the delay was unjustified(6) The court did not characterise the delay as an abuse of process The order with which the main charterers failed to comply was of a non-peremptory nature The outcome might had been different if the order have been an lsquounless orderrsquo The delay caused no prejudice to the owners Nor were the circumstances so exceptional as to warrant dismissing the application for an extension of time(7) A reasonable defence meant one which had some chance of success when only the allegations in the pleadings were considered The hearing of the application should not therefore involve a minute examination of the documents or the facts of the case in order to see whether there was a reasonable defence To do that was to usurp the position of the trial judge and the result was a trial in chambers on affidavits only with discovery and without oral evidence tested by cross-examination in the ordinary way The mere fact that the defence was weak and not likely to succeed was no ground for striking it out so long as the pleadings raised some questions to be decided by the court In short the defence had to be obviously unsustainable on its face to justify an application to strike out In this case the main charterers had a reasonable defence on the face of the pleadings The mainstay of the defence was a simple denial that they were the bailees of the sub-charterersrsquo goods that they had misrepresented to the owners that they were the owners of the marine gas oil that they had not authorised the sale of the oil and that they did not owe any money to the owners These assertions if proven at the trial would afford a full defence

3 Grds for reinstating action

- On application Court may reinstate the action or allow it to proceed on terms it thinks just - O 21 r 2(8)

- See generally Joshua Benjamin Jeyaretnam v Lee Kuan Yew [2001] 4 SLR 1 ndash application to strike out claim was dismissed ndash DECIDED under old regime At time order in force Lapse of 2 yrs and 4 mths when plaintiffs (PAP) had not taken step in proceedgs JBJ took action

to strike it out Court held that that main consideraitn was whther def was prejudiced by sth and tis cannotbe compensated in costs Eg witness died in the meantime Other considetion ndash whether rlimitation period expired

Main considerations - i defendant had failed to show that he was prejudiced by the delay (namely prejudice not

compensatable by costs) and ii limitation period for the Plaintiffrsquos action had not expired therefore Plaintiff was at

liberty to bring the action again even if struck out and this would only incur further costs- note ndash plaintiffrsquos case struck out He applies to revive action He manages to show that imitation period not

expired and you are not prejudiced This does not mean game over for def you can show abuse of process -gt

- Abuse of process and contumelions conduct (a wholesale disregard for the rules) stands on its own =gt can stil strike out even if poaintiff satisfies 1 and 2 above Principles apply as above main principles

This would only be made out in exceptional cases The Tokai Maru [1998] 3 SLR 105 For this head need not show either prejudice or fact of limitation having expired

- Note that pre-writ delay can compound any post-writ delay Birkett James [1978] AC297- Above principles are likely to apply to application to reinstate action under O 24 r 2(8)

3 this does not apply if there is a stay order in force

2 grds for dismissal

Jeyaretnam Joshua Benjamin v Lee Kuan Yew [2001] 4 SLR 1Facts

The respondent (lsquoLKYrsquo) and several others separately sued the appellant (lsquoJBJrsquo) for defamation (respectively lsquothe present actionrsquo and lsquoSuit 22597rsquo) Suit 22597 was heard first and judgment was reserved LKY but not JBJ indicated that he agreed to be bound by the courtrsquos determination in Suit 22597 as to the meaning of the defamatory wordsBoth parties in Suit 22597 appealed against the judgersquos decision After the Court of Appeal gave its decision on 17 July 1998 LKY took no further steps or proceedings for some two years and four months On 7 December 2000 LKYrsquos solicitor wrote to JBJrsquos solicitor asking if JBJ agreed with the Court of Appealrsquos determination of the meaning of the words to which no reply was received On 14 December 2000 LKY filed an application under O 14 r 12 of the Rules of Court for an order that the meaning of the defamatory words in the present action was that as found by the Court of Appeal (lsquoLKYrsquos applicationrsquo) JBJ then applied to strike out the present action for want of prosecution which was dismissed by both the senior assistant registrar and the High Court He appealed

Held dismissing the appeal(1) JBJrsquos contention that LKY failed to comply with O 3 r 5 of the Rules of Court was rejected as s 16(1)(c) of the Interpretation Act (Cap 1 1999 Ed) was not applicable First s 16(2) c concerned only substantive and not procedural rights and amendments to procedural rules affected the rights of parties retrospectively Second a lsquocontrary intentionrsquo was expressed in the Rules of Court as to the preservation of rights under O 3 r 5 by virtue of O 21 r 2(6) and (7) which were enacted simultaneously with the repeal of O 3 r 5 Additionally r 2(6) was further amended and applied to the present action by virtue of r 2(7) Section 18 did not apply as well as it related to the expiration and not repeal of written law(2) LKYrsquos application was necessary and was a genuine step or proceeding in the action for the purposes of O 21 r 2(6) as JBJ unlike LKY never agreed to abide by the courtrsquos determination of the meaning of the defamatory words(3) An action would be struck out or dismissed for want of prosecution where ndash (a) the plaintiffrsquos default had been intentional and contumelious (b) there had been inordinate and inexcusable delay on the plaintiffrsquos or his lawyerrsquos part giving rise to a substantial risk that a fair trial was impossible or that the defendant would suffer serious prejudice or (c) there had been an abuse of court process such as wholesale disregard of the rules of court or court procedure if so it was unnecessary to consider whether the limitation period had expired or for the defendant to invoke either limb of the principles laid down in Birkett v James(4) An action would not normally be struck out for inordinate and inexcusable delay if the limitation period applicable to the action had not expired and fresh proceedings for the same cause of action could still be brought as the fresh proceedings would simply cause more expense and delay(5) Although LKY should have but did not applied for a fresh date for the trial of the present action such default or inaction was not contumelious conduct Further the absence of explanation as to why no action was taken did not give rise to an inference of such conduct There was no evidence that ndash (a) LKYrsquos conduct was intentional and contumelious or (b) he had disobeyed any court order or procedure or rules of court and neither did JBJ show that LKY had acted in such a way(6) LKYrsquos delay was inordinate and inexcusable as it was long and no reason or explanation was given as to why no application was made for a fresh trial date(7) LKYrsquos delay did not give rise to a substantial risk that a fair trial was impossible or that serious prejudice would be caused to JBJ In contesting the present action none of JBJrsquos defences would be prejudiced by the delay nor would it prejudice a fair trial of any of the issues involved The unavailability of the particular Queenrsquos Counsel sought by JBJ did not amount to prejudice as he could have engaged other Queenrsquos Counsels to represent him Furthermore the delay was not an abuse of court process as there was no breach of or non-compliance with any court order or procedure or rules of court(8) Even if LKYrsquos action was struck out he could bring fresh proceedings based on the same cause of action as the limitation period in the present action had not expired Hence striking out would be of no benefit to JBJ and would only result in further costs and expenses being incurred

Per CuriamDeliberate failure to comply with an order of court or a series of separate inordinate and inexcusable delays in complete disregard of the rules of court and with full awareness of the consequences amounted to

contumelious conduct Such conduct also involved an element of scorn and intentional disregard of the rules of court or a court order

The Tokai Maru [1998] 3 SLR 105FactsThe respondents (ldquothe ownersrdquo) were the owners of a vessel the lsquoTokai Marursquo The first appellants (ldquothe main charterersrdquo) chartered the vessel from the owners and sub-chartered it to the plaintiffs (ldquothe sub-charterersrdquo) who placed their goods on board the vessel During the sub-charter the owners withdrew the vessel from the main charterers made off with the sub-charterersrsquo goods and sold part of the goodsThe sub-charterers sued the owners for conversion of their goods The owners alleged in their defence that the main charterers had instructed them with regard to the sale The owners commenced third party proceedings against the main charterers An order of court was made on a third party summons requiring the main charterers inter alia to file and exchange the affidavits of evidence-in-chief of their witnesses within four months The main charterers delayed filing their affidavit by nine months and applied for a retrospective extension of time Meanwhile the owners applied to strike out the main charterersrsquo defence The trial judge disallowed the main charterersrsquo application for an extension of time on the ground that the delay was not justified He also ordered their defence be struck out on the ground that their pleadings disclosed no reasonable defence The main charterers appealed against both decisionsHeld allowing the appeals(1) On the issue whether an extension of time should have been granted the trial judfersquos adoption of the approach in Ratnam v Cumarasamy was rejected as the instant case concerned an application to file an affidavit out of time and not an application to appeal out of time(2) Both the main charterersrsquo application and the ownersrsquo application were inextricably linked in that the main charterersrsquo defence would naturally be struck out if the application to extend time was refused Both applications should therefore be considered together in determining what justice required and the case was best viewed in the round(3) The rules of civil procedure guided the courts and litigants towards the just resolution of the case and should be adhered to Nonetheless a litigant should not be deprived of his opportunity to dispute the plaintiffrsquos claims and had a determination of issues on the merits as a punishment for a breach of these rules unless the other party had been made to suffer prejudice which could not be compensated for by an appropriate order as to costs(4) Save in special cases or exceptional circumstances it could rarely be appropriate then on an overall assessment of what justice required to deny a defendant an extension of time where suchdenial would have the effect of depriving him of his defence This was especially so when it was due to a procedural default even if unjustified which caused the plaintiff no prejudice for which he could not be compensated by an award of costs(5) As to whether the delay of nine months was justified a mere assertion that the person in charge of the action forgot about the matter or neglected it or was too busy to get on with it was not an acceptable explanation for the delay The main charterersrsquo explanations were unsatisfactory and the delay was unjustified(6) The court did not characterise the delay as an abuse of process The order with which the main charterers failed to comply was of a non-peremptory nature The outcome might had been different if the order have been an lsquounless orderrsquo The delay caused no prejudice to the owners Nor were the circumstances so exceptional as to warrant dismissing the application for an extension of time(7) A reasonable defence meant one which had some chance of success when only the allegations in the pleadings were considered The hearing of the application should not therefore involve a minute examination of the documents or the facts of the case in order to see whether there was a reasonable defence To do that was to usurp the position of the trial judge and the result was a trial in chambers on affidavits only with discovery and without oral evidence tested by cross-examination in the ordinary way The mere fact that the defence was weak and not likely to succeed was no ground for striking it out so long as the pleadings raised some questions to be decided by the court In short the defence had to be obviously unsustainable on its face to justify an application to strike out In this case the main charterers had a reasonable defence on the face of the pleadings The mainstay of the defence was a simple denial that they were the bailees of the sub-charterersrsquo goods that they had misrepresented to the owners that they were the owners of the marine gas oil that they had not authorised the sale of the oil and that they did not owe any money to the owners These assertions if proven at the trial would afford a full defence

3 Grds for reinstating action

- On application Court may reinstate the action or allow it to proceed on terms it thinks just - O 21 r 2(8)

- See generally Joshua Benjamin Jeyaretnam v Lee Kuan Yew [2001] 4 SLR 1 ndash application to strike out claim was dismissed ndash DECIDED under old regime At time order in force Lapse of 2 yrs and 4 mths when plaintiffs (PAP) had not taken step in proceedgs JBJ took action

to strike it out Court held that that main consideraitn was whther def was prejudiced by sth and tis cannotbe compensated in costs Eg witness died in the meantime Other considetion ndash whether rlimitation period expired

Main considerations - i defendant had failed to show that he was prejudiced by the delay (namely prejudice not

compensatable by costs) and ii limitation period for the Plaintiffrsquos action had not expired therefore Plaintiff was at

liberty to bring the action again even if struck out and this would only incur further costs- note ndash plaintiffrsquos case struck out He applies to revive action He manages to show that imitation period not

expired and you are not prejudiced This does not mean game over for def you can show abuse of process -gt

- Abuse of process and contumelions conduct (a wholesale disregard for the rules) stands on its own =gt can stil strike out even if poaintiff satisfies 1 and 2 above Principles apply as above main principles

This would only be made out in exceptional cases The Tokai Maru [1998] 3 SLR 105 For this head need not show either prejudice or fact of limitation having expired

- Note that pre-writ delay can compound any post-writ delay Birkett James [1978] AC297- Above principles are likely to apply to application to reinstate action under O 24 r 2(8)

contumelious conduct Such conduct also involved an element of scorn and intentional disregard of the rules of court or a court order

The Tokai Maru [1998] 3 SLR 105FactsThe respondents (ldquothe ownersrdquo) were the owners of a vessel the lsquoTokai Marursquo The first appellants (ldquothe main charterersrdquo) chartered the vessel from the owners and sub-chartered it to the plaintiffs (ldquothe sub-charterersrdquo) who placed their goods on board the vessel During the sub-charter the owners withdrew the vessel from the main charterers made off with the sub-charterersrsquo goods and sold part of the goodsThe sub-charterers sued the owners for conversion of their goods The owners alleged in their defence that the main charterers had instructed them with regard to the sale The owners commenced third party proceedings against the main charterers An order of court was made on a third party summons requiring the main charterers inter alia to file and exchange the affidavits of evidence-in-chief of their witnesses within four months The main charterers delayed filing their affidavit by nine months and applied for a retrospective extension of time Meanwhile the owners applied to strike out the main charterersrsquo defence The trial judge disallowed the main charterersrsquo application for an extension of time on the ground that the delay was not justified He also ordered their defence be struck out on the ground that their pleadings disclosed no reasonable defence The main charterers appealed against both decisionsHeld allowing the appeals(1) On the issue whether an extension of time should have been granted the trial judfersquos adoption of the approach in Ratnam v Cumarasamy was rejected as the instant case concerned an application to file an affidavit out of time and not an application to appeal out of time(2) Both the main charterersrsquo application and the ownersrsquo application were inextricably linked in that the main charterersrsquo defence would naturally be struck out if the application to extend time was refused Both applications should therefore be considered together in determining what justice required and the case was best viewed in the round(3) The rules of civil procedure guided the courts and litigants towards the just resolution of the case and should be adhered to Nonetheless a litigant should not be deprived of his opportunity to dispute the plaintiffrsquos claims and had a determination of issues on the merits as a punishment for a breach of these rules unless the other party had been made to suffer prejudice which could not be compensated for by an appropriate order as to costs(4) Save in special cases or exceptional circumstances it could rarely be appropriate then on an overall assessment of what justice required to deny a defendant an extension of time where suchdenial would have the effect of depriving him of his defence This was especially so when it was due to a procedural default even if unjustified which caused the plaintiff no prejudice for which he could not be compensated by an award of costs(5) As to whether the delay of nine months was justified a mere assertion that the person in charge of the action forgot about the matter or neglected it or was too busy to get on with it was not an acceptable explanation for the delay The main charterersrsquo explanations were unsatisfactory and the delay was unjustified(6) The court did not characterise the delay as an abuse of process The order with which the main charterers failed to comply was of a non-peremptory nature The outcome might had been different if the order have been an lsquounless orderrsquo The delay caused no prejudice to the owners Nor were the circumstances so exceptional as to warrant dismissing the application for an extension of time(7) A reasonable defence meant one which had some chance of success when only the allegations in the pleadings were considered The hearing of the application should not therefore involve a minute examination of the documents or the facts of the case in order to see whether there was a reasonable defence To do that was to usurp the position of the trial judge and the result was a trial in chambers on affidavits only with discovery and without oral evidence tested by cross-examination in the ordinary way The mere fact that the defence was weak and not likely to succeed was no ground for striking it out so long as the pleadings raised some questions to be decided by the court In short the defence had to be obviously unsustainable on its face to justify an application to strike out In this case the main charterers had a reasonable defence on the face of the pleadings The mainstay of the defence was a simple denial that they were the bailees of the sub-charterersrsquo goods that they had misrepresented to the owners that they were the owners of the marine gas oil that they had not authorised the sale of the oil and that they did not owe any money to the owners These assertions if proven at the trial would afford a full defence

3 Grds for reinstating action

- On application Court may reinstate the action or allow it to proceed on terms it thinks just - O 21 r 2(8)

- See generally Joshua Benjamin Jeyaretnam v Lee Kuan Yew [2001] 4 SLR 1 ndash application to strike out claim was dismissed ndash DECIDED under old regime At time order in force Lapse of 2 yrs and 4 mths when plaintiffs (PAP) had not taken step in proceedgs JBJ took action

to strike it out Court held that that main consideraitn was whther def was prejudiced by sth and tis cannotbe compensated in costs Eg witness died in the meantime Other considetion ndash whether rlimitation period expired

Main considerations - i defendant had failed to show that he was prejudiced by the delay (namely prejudice not

compensatable by costs) and ii limitation period for the Plaintiffrsquos action had not expired therefore Plaintiff was at

liberty to bring the action again even if struck out and this would only incur further costs- note ndash plaintiffrsquos case struck out He applies to revive action He manages to show that imitation period not

expired and you are not prejudiced This does not mean game over for def you can show abuse of process -gt

- Abuse of process and contumelions conduct (a wholesale disregard for the rules) stands on its own =gt can stil strike out even if poaintiff satisfies 1 and 2 above Principles apply as above main principles

This would only be made out in exceptional cases The Tokai Maru [1998] 3 SLR 105 For this head need not show either prejudice or fact of limitation having expired

- Note that pre-writ delay can compound any post-writ delay Birkett James [1978] AC297- Above principles are likely to apply to application to reinstate action under O 24 r 2(8)

- See generally Joshua Benjamin Jeyaretnam v Lee Kuan Yew [2001] 4 SLR 1 ndash application to strike out claim was dismissed ndash DECIDED under old regime At time order in force Lapse of 2 yrs and 4 mths when plaintiffs (PAP) had not taken step in proceedgs JBJ took action

to strike it out Court held that that main consideraitn was whther def was prejudiced by sth and tis cannotbe compensated in costs Eg witness died in the meantime Other considetion ndash whether rlimitation period expired

Main considerations - i defendant had failed to show that he was prejudiced by the delay (namely prejudice not

compensatable by costs) and ii limitation period for the Plaintiffrsquos action had not expired therefore Plaintiff was at

liberty to bring the action again even if struck out and this would only incur further costs- note ndash plaintiffrsquos case struck out He applies to revive action He manages to show that imitation period not

expired and you are not prejudiced This does not mean game over for def you can show abuse of process -gt

- Abuse of process and contumelions conduct (a wholesale disregard for the rules) stands on its own =gt can stil strike out even if poaintiff satisfies 1 and 2 above Principles apply as above main principles

This would only be made out in exceptional cases The Tokai Maru [1998] 3 SLR 105 For this head need not show either prejudice or fact of limitation having expired

- Note that pre-writ delay can compound any post-writ delay Birkett James [1978] AC297- Above principles are likely to apply to application to reinstate action under O 24 r 2(8)