Discovery and interrogatories allow parties to obtain relevant information from opponents to assess their cases. Discovery concerns obtaining documents, while interrogatories involve answering questions under oath. The court has discretion to order discovery and interrogatories if necessary for fair case disposal or cost savings. Privileged documents like legal advice are exempt from discovery. Parties have duties to conduct thorough searches and provide full, truthful answers throughout proceedings. Non-compliance can result in sanctions like dismissing claims or defenses.

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Discovery
(Order 24)
1. Meaning and history
- a process of finding out material facts, and documents from an adversary in order to know and to
ascertain the nature of the case in order to support his own case or in order to narrow the points in issue
or to avoid proving admitted fats.
- the object of discovery is as follow:
i) to ascertain the case of an adversary
ii) to narrow points in issue
iii) to avoid expenses in proving admitted facts.
Burchard V Macfarlane
As a general rule discovery is only allowed against parties to the proceedings and not against the third
parties.
Discovery is two kinds namely
a) Discovery of documents relating to matters in question in the action and in the possession of the
party
b) Discovery by interrogatories of facts relevant to the issue in the action and within the knowledge
of the party interrogated.
Section 114 (g) Evidence Act – Adverse inference (x nak disclose sebab unfavour to their case.)
- cannot fishing expedition (not sure what documents or facts they need)
- Cannot used discovery to defeat professional previllage orinjurious to public interest
2. Function
(i) to provide parties with relevant documentary material before trial to enable them to
appraise the strength or weakness of their respective cases;
(ii) to provide the basis for the fair disposal of the proceedings before or at the trial;
(iii) to enable parties to use before trial or adduce in evidence at the trial relevant
documentary material to support or rebut the case made by or against them;
(iv) to eliminate surprise at or before trial, relating to documentary evidence; and
(v) to reduce the costs of litigation.
3. The process of discovery generally operates in three stages:
(a) disclosure – just need information
(b) inspection and taking of copies - the disputed subject matter in the particular room @
building. Eg huge crack has appeared. Go for inspection to see the creck because
photograph not reveal everythings.
(c) production
4. Order for Discovery (O 24 rr 3 and 7)
(a) Discovery is not automatic
Discovery must be directed by the court and usually will be dealt with at first case
management stage.
(b) Powers of the court to make an order for discovery
Rotta Research Laboratorium Spa Ho Tack Sien
- Discovery is not a matter of right but one one in the court’s discreation.

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Mahfar bin Alwee v Jejaka Megan Sdn Bhd
- The court will only make an order for discovery if it is necessary either for disposing fairly
the action or saving of the costs.
(c) Documents “which are or have been in his possession, custody or power”:
Lonrho Ltd v Shell
Possession under this rule refers to physical possession. Thus even if a person does not
have any legal rights over the documents it will come within this rule. If a document is within
the power of the person to produce it will also come within this rule provided he has a
presently enforceable legal right to obtain from whoever actually holds the document for
inpection of it without the need to obtain the consent of anyone else.
(d) At any time in the course of proceedings
See also rr 7, 7A and 10
(e) Affidavit verifying the list of documents
(f) Documents that are subject to the process of discovery
O 20 r 3(4)
5. Duty to discover continues throughout proceedings (O 24 r 8A)
6. Inspection of documents (O 24 rr9 and 10)
7. Claims for privilege from disclosure (O 24 r 5(2))
Certain classes of documents, though they must be disclosed as relating to matters in question in
the action, are, however, privileged from production.
See the following generally: Evidence Act 1950; Sections 121-132
S. 121- Judges, Presidents etc; S. 122 - Husband and Wife; S. 123 - Affairs of State; S. 124 -
Confidential communications – public interest; S. 125 -Information as to commission of offences;
S. 126 - Legal Professional Communications; S. 127 - Application of S. 126 to clerks etc; S. 128 -
Privilege not waived by volunteering evidence; S. 129 - Confidential communications with legal
advisers; S. 130 - Productions of title deed etc of witness not a party; S. 131 - Production of
document which another person could refuse; S. 132 - Self-incrimination.
See also s. 36 Government Proceedings Act 1956 with reference to “affairs of state” and “public
interests”.
Cases:
B.A. Rao v Sapuran Kaur
Objection as to production as well as the admissibility contemplated in section 123 and 162 of the
Evidence Act is decided by the court in an enquiry of all available evidence. Court has power to
call for the documents, examine them, and determine for itself the validity of the claim.

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Govt of Selangor v Central Lorry Service etc Bhd
The df applied for an order that the pf produce for inspection the file relating to the other tenders
in particular Ong Soon Tat & Co. the df secured a tender from the pf. Df was not able to complete
the work and the pf invited other tenders to complete the work. The pf claim certain sum alleged
to be due from the df as a result of the failure to complete the work. The pf objected to the df’s
application, and claim privilege under section 126 (1) of the Evidence Ordinance. The court held
that the file in question was not privilege against discovery and inspection by the df.
Wix Corp. etc Bhd v Minister of Labour and Manpower
Whether reports of conciliation proceedings under section 20 of the Industrial Relation Act 1967
relates to affair of state within the meaning of section 123 of Evidence Act. In this case, the
applicant had applied for an order for certiorari to quash an order of reference made by the
Minister under the Industrial Relation Act. The applicant had applied for the reports to be
produced. The respondent objected on the grounds that they related to the affairs of the state.
The court held that the report under section 20 of the Industrial Relation Act was not official
records relating to affairs of the state within the meaning of section 123 of the Evidence Act.
Yeo Ah Tee v Lee Chuan Meow
Whether the statement made to an investigator of the Legal Aid Bureau by a legally aided person
are privilege under section 127 of the Evidence Ordinance read together with section 27 (1) (b) of
the legal Aid Bureau and Advice Ordinance which states that the privileges attached to the
relationship of client and advocate and solicitor to whom the matter is referred. The court of
Appeal held that the trial judge was wrong in compelling the plaintiff to disclosed communication
which took place between him and the Bureau as the plaintiff did not waive the privilege or
consent to its disclosure.
Alfred Crompton etc Ltd v Comm of Customs & Excise
Waugh v BRB [1980] A.C. 521.
8. Failure to make discovery ((O 24 r 16)
Note the wide powers of the court, including the power to dismiss P’s action and strike out D’s
defence. Failure to comply with a specific order is contempt (r. 16(2)).
9. Discovery against a stranger
The principle in Norwich Pharmacal Co v Commissioners of Customs & Excise [1974] A.C 133.
“[A] stranger who though not personally liable but who through no fault of his own (and whether
voluntarily or not) has got mixed up in the tortious acts of others so as to facilitate their wrong
doing ... comes under a duty to assist the person who has been wronged by giving him full
information and disclosing the identity of the wrongdoer.” (Lord Reid)
See also
Loose v Williamson
B.S.C v Granada Television - both case applied this Norwish Rule
Ricci v Chow
First Malaysia Finance Bhd v Dato’ Mohd Fathi
- The general rule laid down in Norwish case is that the discovery to find the identity of the
wrongdoer is available against anyone against whom the plaintiff has a cause of action in
relation to the same wrong. To this general rule, there is an exception that if, though no
fault of his own, a person gets mixed up in the tortious act of others so as to facilitiate
their wrongdoing, whilst he may incur no personal liability, he is under a legal duty to
assist the person who had been wronged by giving him full information and in making
disclosure of the identity of the wrongdoers. Further, the court stated that a Norwich

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Pharmacal order being an equitable remedy will not be granted as of right even when the
requirements for it were satisfied and the court has discretion as to whether to grant or to
refuse it (cause of action pleaded was in contract and not in tort)
Lee Lim Huat v Yusuf Khan
Interfood Sdn Bhd v Arthur Anderson & Co
Bankers Trust Order: Bankers Trust Co v Shapira & Co [1980] 1 WLR 1274;
Arab Monetary Fund v Hashim & Others (No. 5) [1992] 2 All ER 910.
Tat Seng Sdn Bhd v San & Co
(Requirements not satisfied)
See the new Order 24 rule 7A

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Interrogatories
1. Meaning and Objective
`Interrogatories’ are questions answerable on oath which a party may, with the leave of the court,
serve on his opponent. In the first instance the answers are given by affidavit but if the party
interrogated omits to answer some of the questions or gives insufficient answers the court may
order a further answer to be given either by affidavit or by oral examination. Although the
interrogatories proposed must be relevant to the action the definition of `relevance’ is very wide.
The questions may relate to any matters which go to support the interrogator’s case or to
impeach or destroy his opponent’s case. Thus answering interrogatories is just another form of
discovery and is sometimes called `discovery of facts.’
See Mahon v Osborne [1939] 2 KB 14.
2. Discovery without leave of court (O 26 r 2)
See Shum Kai Cheong v See Too Woon Yee [1998] 4 MLJ 153 and Yew Yin Lai v Teo Meng Hai
[2007] 4 MLJ 703.
3. Discretion of the Court
See Sheikh Abdullah bin Sheikh Mohammed v Kang Kok Seng [1975] 1 MLJ 89 at 90, FC
Guiding principles:
Questions relating solely to credit will not be allowed by interrogatories.
“Fishing” not permitted: looking for a case rather than trying to establish one.
(ii) Necessity
For disposing fairly of the suit r. 1(3).
If can be subject of a notice to admit facts, no interrogatory.
Where party offers to provide the information sought, no interrogatory.
If witness must be called in any event at the trial to prove a fact, no interrogatory to obtain
admission of that fact. See Ramsey v Ramsey [1956] 2 All E.R. 165
Variable from case to case. The following points to be considered:
(a) Is the question relevant?
(b) Would it help the applicant or has he to call a witness to establish the fact?
(c) Has the question been framed clearly and precisely that the opponent can be expected to
give a straight answer?
(d) Is it reasonable to deal with the point in this way, there having been discovery of
documents and witnesses may be needed at the trial or could it be more convenient to
ask for particulars or serve a notice to admit facts?
Maass v Gas Light and Coke Co. [1911] 2 K.B. 543.

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4. Application
See Order 26 rule 1 and Forms 44-47.
5. Objections
(i) Not relevant
(ii) Not necessary
(iii) “Fishing”
(iv) Evidence, not facts
(v) Opinion, not facts
(vi) Oppressive: too many, vague, scandalous
(vii) Privilege
(viii) Premature
See Pertubohan Berita Nasional v Stephen Kalong Ningkan [1980] 2 MLJ 19.
6. Answers
By Affidavit.
Must not be evasive.
Answer to the best of knowledge, information and belief.
Where necessary enquiries must be made of agents and servants.
Companies – inquiries be made of past officers and servants and state it in the answer:
Stansfield Properties v National Westminster Bank [1983] 2 All E.R. 249.
Prolix, argumentative, embarrassing or evasive answer will be expunged.
Inconsistent answer: Philip Haslim v Amalgamated Theatres (1936) MLJ 11
7. Failure to comply with order (O 26 r 7)
Action to be dismissed, defence be struck out or committal for contempt.
8. Use of interrogatories at the trial
Order 26 r 8: Party adducing them is not bound by the answers and can lead evidence to
contradict them. Also, may put in some answers and leave out others.