Pre-action discovery requires a bona fide cause of action and sufficient justification for document requests, which was not established here.

The Application

[1] The Plaintiff vide this Originating Summons (encl 1) is seeking an order for pre-action discovery of documents pursuant to O 24 r 7A of the Rules of 2012 ("ROC").

[2] The discovery sought is in respect of documents relating to a charge over land known as Lot 22, Section 48, Town and District of Kuala Lumpur held under CT 3114 ("the Property") given in favour of the Plaintiff sometime in 1976 ("the Charge") and in particular seeks discovery of:

(a) all documents pertaining to the title to the Property;

(b) all documents pertaining to the Charge;

(c) all documents pertaining to the open charge registered with the Companies Commission of Malaysia on 23 April 1976 under the 1st Defendant in favour of the Plaintiff ("CCM Charge"); and

(d) all documents evidencing the 1st Defendant's understanding that the 1st Defendant is deemed to have their shares pledged to the Plaintiff sold off and that the 1st Defendant is no longer in debt with the Plaintiff, as stated in the 2nd Defendant's email dated 26 August 2010.

[3] The grounds of the application are that:

(a) the Plaintiff has reason to believe that the Defendants had conducted themselves fraudulently or in an otherwise improper or negligent manner in respect of the Charge; and

(b) therefore the Plaintiff seeks to obtain sufficient documentary evidence from the Defendants to put the Plaintiff in a position where it is able to make a reasonable assessment of the situation and decide whether to institute an action against the 1st Defendant and/or such other parties.

The Law

[4] Before I proceed to consider the merits of the application, let me set out the law as it relates to applications of this nature. Prior to the coming into force of O 24 r 7A of the ROC, the jurisdiction of the Court to grant pre-action discovery was somewhat limited. This was reiterated by Gopal Sri Ram JCA in Nishimatsu Construction Co Ltd v. Kecom Sdn Bhd 2008 MarsdenLR 4548 , [2008] 6 CLJ 149 CA to the effect that:

Save in the circumstances set out in the decision of the House of Lords in Norwich Pharmacal Co v. Customs and Excise Commissioners [1974] AC 133, the Court has no jurisdiction to grant anticipatory discovery that is to say discovery in anticipation of the action being filed.

Of course the Norwich Pharmacal case was the landmark decision of the English House of Lords that established the right of a person to seek an order for pre-action discovery against potential parties to an anticipated action or against third parties who may be in possession of information or documents that may assist the applicant to identify the wrongdoer and file an action. Now, that right to seek pre-action discovery is procedurally codified in O 24 of the ROC.

[5] It must be gainsaid that to some extent O 24 r 7A of the ROC overlaps with the principles enunciated in the Norwich Pharmacal case, which principles was adopted and applied by our Supreme Court in First Malaysia Finance Bhd v. Dato' Mohd Fathi Haji Ahmad , 1993 MarsdenLR 1413 and subsequently in several other cases. (See also the cases of Lee Lim Huat v. Yusuf Khan Ghows Khan & Anor; [1997] 2 MLJ 472; [1997] 3 CLJ 197 CA ; [1997] 3 AMR 2401; Stemlife Bhd v. Bristol-Myers Squibb (M) Sdn Bhd; [2008] 6 CLJ 200; and RHB Bank Bhd v. Ab Malik Abdullah & Ors; [2010] 6 CLJ 981.)

[6] The remedy of pre-action discovery is primarily intended to enable justice to be done - see O 24 r 7A(5). The House of Lords in Ashworth Hospital Authority v. MGN Ltd [2002] 1 WLR 2033; [2002] 4 All ER 193, quoted with approval the words of Templeman LJ in British Steel Corporation v. Granada Televisio