The court granted a protective order to shield confidential information during damages assessment, balancing the need for confidentiality with the public interest in open justice.

JUDGMENT

Yusrin Faidz Yusoff JC:

Introduction

[1] In this judgment, we delve into the Plaintiffs application in Encl 161, seeking a protective and sealing order to shield commercially sensitive and confidential information from being publicly disclosed during the assessment of damages. The Defendant, standing in opposition, champions the cause of full disclosure, asserting its indispensability for a fair trial. The court, the arbiter of this contest, must now walk a tightrope, balancing the need for confidentiality, a closely guarded treasure, with the transparency that is the lifeblood of a just legal system.

Background Facts

[2] Pursuant to a full trial, my learned brother Azlan bin Sulaiman JC has allowed the Plaintiffs copyright infringement claim against the Defendant. The key question during trial revolves around the Plaintiff's copyright in their New Delac curtain track design; wherein this court found that the Defendant's Yokita curtain track design infringes the Plaintiff's New Delac track design. The Judgment of my learned brother dated 21 September 2022 includes the Plaintiffs relief for damages to be assessed; wherein a Notice for Direction for assessment of damages pursuant to O 37 r 1 of the Rules of 2012 ('the Rules') was duly filed on 19 January 2023 (Enc. 151).

[3] With an eye towards shielding their confidential and commercially sensitive documents, the Plaintiff filed this application (Encl 161) on 11 October 2023. In general, the Plaintiff seeks the following from the court:

a) Protection of Confidential Information: That specific documents and information related to their business dealings and internal records (referred to as "Protected Information") be used exclusively for the proceedings assessing the Plaintiffs damages;

b) Limited Disclosure: That the Protected Information be disclosed only to certain individuals involved in the proceedings, including the Judge, court personnel, legal counsel, named representatives, witnesses, and a designated transcriber. Specific recipients must sign a confidentiality undertaking;

c) Confidentiality Maintenance: That all recipients of the Protected Information maintain its confidentiality and not discuss or disclose it to non-recipients, even after the conclusion of the proceedings;

d) Secure Filing and Handling: That the Protected Information is filed in physical form only, kept separate from other documents, sealed with a clear confidentiality notice, and not made accessible to the public; and

e) In Camera Proceedings: That the assessment of damages be conducted in a closed session (in camera), excluding nonrecipients and ensuring that only authorized personnel can access the recordings and transcripts of the proceedings.

[4] On 19 February 2024, after considering parties' submissions, I allowed the Plaintiffs application.

Issues

[5] The application focuses on the following issues:

a) Whether protective order is necessary; and

b) Whether the benefits of the protective order outweigh the harm.

A. Whether Protective Order Is Necessary

i) Counsels' Contentions On Whether Protective Order Is Necessary

[6] The Defendant's learned counsel, Kok Pok Chin, argues that it is neither necessary nor in the interest of justice for the Plaintiff to apply for such a protective order that aims to avoid scrutiny of its documents. The application is said to be made by misapplication of authorities as it is usual even for high-profile cases to be conducted openly.

[7] The Defendant argues that there is nothing unique or exceptional in the current case that justifies the Plaintiff's secrecy about their commercial documents compared to cases involving high-profile figures and their financial transactions. In fact, according to the Defendant, the price of their Yokita product is lower if compared with the product of the Plaintiff wherein there would be no risk or detriment to the Plaintiff's business.

[8] The learned Counsel for the Plaintiff, Su Siew Ling argues that their application is made in good faith