Pre-action discovery can be sought against non-parties to establish viability of claims before filing.

[1] Pre-trial discovery is common between parties to an action that has already begun. It is less usual if the discovery is before the commencement of proceedings. It is even rarer still if the discovery is pre-action against non-parties to an intended action. The case of Norwich Pharmacal Co v. Customs and Excise Commissioners [1974] AC 133, was the watershed setting out the circumstances under which a pre-action discovery application may be made confining itself mainly to situations where it would be nigh impossible to commence an action against unknown defendants; unknown to the plaintiff but known to the party against whom a pre-action discovery is sought. As was observed by the Court of Appeal in Nishimatsu Construction Co Ltd v. Kecom Sdn Bhd; at p 103 [2009] 2 MLJ 404; [2008] 6 CLJ 149:

"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."

[2] The circumstances under which such an order may be made have since expanded to cover a variety of situations where it would be just and necessary even when the defendants have been identified, with a view to saving costs or assessing the viability of one's case. It is generally understood that the new O 24 r 7A Rules of 2012 ("ROC") was deliberately designed to cater to the new regime introduced by the Norwich Pharmacal order and indeed to codify the principles enunciated in the Norwich Phamacal case.

[3] There was of course no necessity to reinvent the wheels. Similar provisions have appeared in the UK Civil Procedure Rules. Singapore in revamping their Rules of the Supreme Court has their O 24 r 6 Rules of Court (Cap 322, R 5, 2004 Rev Ed).

[4] This judgment explores the scope of O 24 r 7A ROC with respect to pre-action discovery against non-parties to an intended action by a plaintiff.

Problem

[5] The plaintiff had some investments in a company called AIMS Data Centre 2 Sdn Bhd ("AIMS 2"). He had 80,000 shares in AIMS 2 which worked out to be 40% of the total paid up capital of AIMS 2. He was also the former Vice President of Business Development of AIMS 2, playing an executive role in the company. Another party, Megawisra Sdn Bhd ("Megawisra"), had 51% of the total paid up capital. The balance 4% was in the hands of four other shareholders. The plaintiff was agreeable to dispose of his shares in AIMS 2 to Megawisra as part of the latter's restructuring exercise such that with the other shareholders also transferring their shares to Megawisra, Megawisra may then flog off the whole block of shares in the AIMS 2 and in the other companies in the group (called AIMS Group) to a third party in a corporate exercise.

[6] As a sweetener, the purchase price to be paid by Megawisra to the plaintiff was expressed as follows in cl 4(ii) of the share sale agreement of 3 November 2010:

"In the event that Megawisra dispose of all of its shareholding in ADC2 pursuant to a trade sale, IPO or otherwise, such net purchase consideration received per share, multiplied by 80,000 minus the EBIDTA Payment ("Future Payment") will be paid to you on the following terms:

(a) in three equal annual instalments, commencing in the calendar year following the completion of the disposal of ADC2 shares and payable on the 31st day of January of each year ("Payment Dates") and ..."

[7] ADC2 is the acronym for AIMS Data Centre 2 Sdn Bhd in the share sale agreement also abbreviated as AIMS 2 in this judgment.

[8] The consideration paid upon signing t