MAY 12 — The term “discovery” is used to describe a certain process by which a party to a civil action is enabled or allowed to obtain from the opposite party: (1) answers on oath to questions as to the facts in dispute between them; and (2) information as to, and production of, the documents relevant to the dispute; for the purpose of preparing for the trial of the action and of obtaining a final judgment.

In short, discovery is the process of finding out material facts and documents from an adversary.

It is generally desirable for each party to see all material documents in the possession of his opponent, and to take copies of the more important ones.

Discovery serves to:

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• provide parties with relevant documentary material before trial to enable them to appraise the strength or weakness of their respective cases;

• provide the basis for the fair disposal of the proceedings before or at the trial;

• 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;

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• eliminate surprise at or before trial relating to documentary evidence; and

• reduce the costs of litigation.

The object of discovery may accordingly be stated as follows:

• to ascertain the case of an adversary;

• to narrow points in issue;

• to avoid expenses in proving admitted facts.

In the case of Teoh Peng Phe v Wan & Co [2001] the High Court identified 3 modes of discovery:

• disclosure of the existence of documents;

• inspection of documents; and

• interrogatories;

But the term “discovery” is often used to mean disclosure and inspection as one.

As a general rule, discovery is only allowed against a person who is a party to the proceeding and not against third parties.

If information or documents in the possession of a person is or are required, the proper procedure is to call him as a witness to give oral testimony or to serve a subpoena duces tecum — that is, a subpoena for the production of evidence. Duces tecum is Latin for “you shall bring with you”.

However, there are at least two exceptions to the general rule. The first is what is known as the principle in Norwich Pharmacal enunciated in the English House of Lords case of Norwich Pharmacal Co v Commissioners of Customs & Excise [1974].

The principle is explained in the Supreme Court case of First Malaysia Finance Bhd v Dato’ Mohd Fathi Bin Haji Ahmad [1993] where Supreme Court Judge Edgar Joseph Jr, who delivered the judgment of the Court, said:

“To the general rule, there is, however, an exception exemplified by the Norwich Pharmacal case; the exception being that if, through no fault of his own, a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing, whilst he may incur no personal liability, yet is under a legal duty to assist the person who has been wronged by giving him full information and in making disclosure of the identity of the wrongdoers.

“In the words of Lord Reid: justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.”

The learned Supreme Court Judge went on at length explaining the principle before making a concluding remark as follows:

“A final point needs to be made and it is this: a Norwich Pharmacal Order being an equitable remedy will not be granted as of right even when the requirements for it are satisfied and, so, the court has a discretion as to whether to grant or refuse it.”

An order of discovery would not be granted if it is not bona fide and merely for a collateral purpose. (See the English case of The Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975]).

The preceding paragraphs explain why the High Court on Tuesday (May 7) dismissed Datuk Seri Anwar Ibrahim’s former research assistant, Muhammed Yusoff Rawther’s discovery application of the polygraph test to support his suit filed against the PKR president.

Muhammad Yusoff Rawther had filed a third-party discovery application against PDRM, seeking for disclosure of the polygraph test results which he had undertaken with the PDRM back in December 2019. — Picture by Ahmad Zamzahuri
Muhammad Yusoff Rawther had filed a third-party discovery application against PDRM, seeking for disclosure of the polygraph test results which he had undertaken with the PDRM back in December 2019. — Picture by Ahmad Zamzahuri

Muhammed Yusoff had filed a third-party discovery application against PDRM, seeking for disclosure of the polygraph test results which he had undertaken with the PDRM back in December 2019.

In dismissing the application, High Court Judge Datuk John Lee Kien How @ Mohd Johan Lee has acted on established principles.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.