Discovery applications must demonstrate relevance, necessity, and specificity; overly broad requests may be dismissed as fishing expeditions.

(Enclosure 138 - Discovery Application By The Defendant)

John Lee Kien How @ Mohd Johan Lee JC:

I. Facts Of The Case

[1] This is the Defendant's application for discovery pursuant to O 24 r 3 and O 24 r 7 of the Rules of 2012 ('the ROC ').

[2] The Plaintiffs have filed this suit against the Defendant ("this Suit") for the publication of defamatory statements against the Plaintiffs on various online websites and in an email dated 10 May 2019 to the 2nd Plaintiff, one Mohammed Salem and one Mohsen Rashed.

[3] The Defendant later brought a counterclaim ('the Counterclaim') against the 2nd to 5th Plaintiffs in relation to the shares sold by the Defendant to the HSA Group, which was allegedly sold at undervalue. The Defendant claimed that the 2nd Plaintiffs committed fraud and breach of fiduciary duties premised on alleged misrepresentation made by the 2nd Plaintiff. The Defendant also claimed that the 2nd Plaintiff had concealed the existence of a 2013 committee report ("the 2013 Committee Report") which prevented the Defendant from knowing the true value of the shares sold by the Defendant to the HSA Group.

[4] The Defendant filed the Counterclaim mainly for the difference between the sums he received from the sale of the shares to the HSA Group and the purported true value of the shares based on the 2013 Committee Report. The Defendant also alleged that the 2nd to 5th Plaintiffs induced the Defendant to purchase some shares in foreign companies inherited by the female beneficiaries of Mr Ahmed Hayel Saeed's estate without his consent. This has caused him suffering further loss.

[5] Subsequently, the Defendant filed this discovery application ('Enclosure 138') mainly for these orders:

a) Prayer 1 to 3 - that the Plaintiffs provide a list of documents which include, but not limited to documents relied and/or intended to be relied by the Plaintiffs, documents that will adversely affect or support the Plaintiffs' and/or Defendant's case ('General Discovery'); and

b) Prayer 4 - further and/or alternatively, that the Plaintiffs provide an affidavit by stating whether the Plaintiffs have at some time had in their possession, custody or power, the documents, or class of documents, all of the 27 items specified or described in Schedule A the Plaintiffs shall state when the Plaintiffs parted with the same and what has become of it ('Specific Discovery').

II. Submission By The Defendant

[6] The Defendant contended that all three essential elements for an order of discovery has been fulfilled by the Defendant in this Application.

[7] The Specific Discovery sought by the Defendant under O 24 r 7 of the ROC , namely the documents in Schedule A of encl 138, are relevant to the Defendant's defence of justification and fair comment under s 8 and 9 of the Defamation Act 1957 and the Counterclaim.

[8] The Defendant argued that having fulfilled the relevancy test, the Defendant's application is thus non-frivolous or is not a fishing expedition. The Defendant relied on the case of Billion Prima Sdn Bhd & Anor v. Nutech Co Ltd & Anor, 2016 MarsdenLR 2188 and few other cases as authorities.

[9] Further, it was premised that there is no requirement for the Defendant to describe and name each and every documents specifically since the Defendant is only required to describe the type or class of documents with reasonable precision. Defendant referred to numerous cases to support this premise.

[10] The Defendant also alleged that the Plaintiffs have not denied in the affidavits that the documents sought by the Defendant are in the Plaintiffs' possession, custody and power. The Plaintiffs merely said in the affidavits that the documents sought are related with various other companies not involved in the proceeding and that the Defendant has not established that the documents are in the possession, custody and control of the Plaintiffs.

[11] With regard to the element of possession, custody or power, it was mooted by the Defendant that the requirements laid under