Low Hop Bing J:

Application

The plaintiff vide this application by way of originating summons dated 8 April 2004 in enclosure (3) prays for an order that the defendants do produce and furnish to the plaintiff the following documents:

1. medical reports pertaining to the plaintiff; and

2. records, blood sample reports, notes, charts and documents pertaining to the treatment and medication given to the plaintiff between 1999 and 2003.

(These documents are collectively referred to as "the documents".)

The grounds of the plaintiff';s application are that the plaintiff has a cause of action against the defendants in medical negligence and that the documents are required for the purpose of pleading particulars in the claim which is to be filed by the plaintiff.

The plaintiff has on 24 May 2005 filed a writ of summons in the High Court of Malaya in Seremban vide civil suit No. 21-2-2005 against the Director of Health and Medical Services Negeri Seremban, Dr. Vijayasingam and the Government of Malaysia, as defendants 1, 2 and 3 respectively.

Pre-action Discovery

The plaintiff who is an advocate and solicitor appeared in person. He urged the court to give a pre-action discovery order on the basis of Norwich Pharmacal Co. and Others and Customs v. Excise Commissioners [1974] AC 133 HL; First Malaysia Finance Bhd v. Dato' Mohd Fathi bin Haji Ahmad [1993] 3 CLJ 329 SC; and Ashworth Hospital Authority v. MGN Ltd [2002] 4 All ER 194 HL.

Miss Alice Loke Yee Ching learned senior federal counsel also referred to Norwich Pharmacal, supra; and First Malaysia Finance, supra, but submitted that the plaintiff is not entitled to the order sought herein because the plaintiff has failed to satisfy the conditions for the grant of the order as the plaintiff is not seeking to discover the identity of the wrongdoers within the principle inNorwich Pharmacal, supra, and that the plaintiff was in no doubt as to the identity of the defendants.

It is abundantly clear to me that the above submissions have established a common ground ie, that the court has the jurisdiction to make a pre-action discovery order in accordance with the principle enunciated in Norwich Pharmacal, supra.

For brevity and convenience, I shall refer to the order sought by the plaintiff as Norwich Pharmacal Order, which was also the term used by the then Supreme Court in First Malaysia Finance, supra.

In this regard, it is useful to refer to the salient facts. Norwich Pharmacal Co. was the patent owner and licensee for a chemical compound. It appeared that the patent was being infringed by illicit importations of the compound manufactured abroad. In order to obtain the names and addresses of the importers, Norwich Pharmacal Co. brought actions against the Commissioners of Customs and Excise ("the Commissioners") seeking, inter alia, orders for the disclosure of the relevant information. The appeal before the House of Lords proceeded solely on the basis of an action for discovery.

The House of Lords held that:

1. where a person, albeit innocently and without incurring any personal liability, became involved in the tortious acts of others, he came under a duty to assist one injured by those acts by giving him full information by way of discovery and disclosing the identity of the wrongdoers, and for that purpose it mattered not that such involvement was the result of voluntary action or the consequence of the performance of a duty statutory or otherwise; and accordingly, prima facie, the Commissioners were under a duty to disclose the information sought; and

2. in the circumstances, there was no head of public policy nor statutory provision which precluded the making of an order for discovery.

The House of Lords judgment was judicially considered in Malaysia in First Malaysia Finance, supra. Edgar Joseph Jr SCJ (as he then was), speaking for the Supreme Court, explained that to the general rule in Norwich Pharmacal, supra,that discovery to find the identity of the wro