Introduction

[1] This appeal concerns an important but often taken for granted question of law: What is the evidential status of documents placed in Part A of the Bundle of Documents ("the BOD") which the parties rely on or refer to in the course of the trial? This bundle is commonly known as the "Bundle of Agreed Documents".

[2] After a full trial of the action in the High Court, the learned Judicial Commissioner ("JC") found the defendant liable and awarded a global sum of RM5 million in general, exemplary and punitive damages to the plaintiff. The instant appeal by the defendant is against both liability and quantum.

[3] We heard arguments on 30 June 2016 and reserved judgment to a date to be fixed. Having deliberated on the matter, we have reached a split decision. Our learned brother, Justice Hamid Sultan Abu Backer JCA would allow this appeal and has written a dissenting judgment whereas my learned brother Justice Prasad Sandosham Abraham JCA and I would dismiss the appeal on liability. This then is our majority decision, which we now deliver.

The Salient Facts

[4] For convenience, we shall refer to the parties as they were in the Court below, namely the app