Litigation privilege protects certain documents from disclosure; repeated discovery requests can be barred by res judicata if previously adjudicated.

Ahmad Murad Abdul Aziz J:

Introduction

[1] Messrs K.K. Lim, the 13th Defendant herein ("D13") filed this application in encl 868 for discovery and production of documents by the Plaintiff ("the Plaintiff/Bank" where appropriate). The documents sought to be produced are as follows:

(i) A report in respect of the Bank's internal investigation from May 2015 to October 2015 on the conspiracy by the Defendants in the matter herein to defraud the Bank ("Investigation Report");

(ii) Documents in respect of a disciplinary action taken by the Bank against its former employee, Ms Chia Mee Lan ("CML"), in respect of the loan application of the 20th Defendant in the matter herein ("Disciplinary Action Papers") including but not limited to-

(iii) The documents relating to the Bank's alleged admission of "negligence and shortcomings in the process / system" referred to in a letter dated 10 April 2023 issued by Bank Negara Malaysia ("BNM"") ("the BNM Documents"), (collectively referred to as "the requested Documents" or "Investigation Report" / "Disciplinary Action papers" / "the BNM Documents", where the context requires).

[2] The grounds provided by D13 for seeking the discovery of the above documents can be found in their submissions in encl 885, which essentially state the following:

(i) During the trial, it was revealed through the Plaintiff's own witnesses that internal fraud had occurred within the Plaintiff. The witnesses testified that:

(a) Between May to October 2015, the Plaintiff conducted an internal investigation that purportedly uncovered suspicious transactions among the Borrowers; and

(b) The Plaintiff's former employee, Ms Chia Mee Lan admitted to being negligent in approving one of the loans, and that the Plaintiff's weak and/or insecure loan system allowed such negligence and internal fraud to take place.

(ii) In light of the above testimony and letter from BNM, D13 now seeks to obtain the Documents to fully comprehend the nature of the internal fraud within the Plaintiff which is directly related to D13's defence.

(iii) Therefore, D13 submits that the documents sought are relevant and necessary for D13's defence.

[3] With respect to the BNM Documents, D13's application for discovery is hinged on the Plaintiff's alleged admission of internal weakness in its processing system in the loan application process.

Issues To Be Decided

Investigation Report And Disciplinary Action Papers

[4] D13 had commenced a separate action against the Bank under High Court of Malaya Civil Suit No:: WA-22NCVC-63-01/2022 (hereinafter referred to as "Abuse of Process Suit"), claiming that the Bank had committed the tort of abuse of Court process against D13 through the filing of this suit against D13.

[5] In opposing this application by D13, the Plaintiff submits as follows:

(a) In the Abuse of Process Suit, D13 filed an application against the Bank for the discovery and production of the very same Investigation Report and Disciplinary Action papers sought in the present application in Encl 868. The discovery application filed in the Abuse of Process Suit is referred to as "Abuse Discovery Application".

(b) The grounds in support of D13's Abuse Discovery Application, as well as the grounds in opposition thereof advanced by the bank, is set out in the Grounds of Judgment of the High Court in dismissing D13's Abuse Discovery Application.

(c) The said Grounds of Judgment is found in Enel 877, PDF 404¬417, which also set out the documents sought by D13 in those proceedings, (for the avoidance of doubt, they are the very same Investigation Report and Disciplinary Action Papers which are now sought again by D13).

(d) In considering the issues of privilege and confidentiality which were relied upon by the Bank in opposition to D13's Abuse Discovery Application, the High Court found that both the Investigation Report and Disciplinary Report and Disciplinary Action Papers are protected from disclosure /production under the principles of litigation privilege, as well