A draft settlement agreement remains privileged under section 126 of the Evidence Act 1950 unless disclosed; knowledge of its existence does not waive privilege.

[1] This is an appeal against a discovery application which was granted in Suit No WA-22M-300-07-2018 ("Suit 300"). The appellant in this appeal is Malaysia Debt Ventures Berhad ("MDV"). MDV is the plaintiff in Suit 300. The appeal is against an order of discovery of a specific document, namely a draft settlement agreement ("the DSA"). The discovery application was filed by the respondents - the defendants in Suit 300. The decision of the High Court is reported as Malaysia Debt Ventures Berhad v. Platinum Techsolve Sdn Bhd & Ors. The discovery order has been stayed pending disposal of the present appeal.

[2] MDV filed Suit 300 to recover the amounts which are said to be owing under an Islamic financing facility. The respondents counterclaimed and contended that based on the exchange of correspondence and discussions between MDV and the 1st respondent ("R1"), there was a concluded contract of settlement, albeit that a formal settlement agreement had not been executed.

[3] The background to the DSA is as follows. MDV and R1 had exchanged correspondence and held discussions with respect to a settlement of a debt under an Islamic financing facility which was due and owing to MDV. R1 was the counterparty to the proposed settlement.

[4] The terms of the proposed settlement were to follow the terms as stipulated in MDV's letter dated 19 February 2018. In that letter, MDV had also stipulated that it would prepare the settlement agreement and that it must be executed by 31 March 2018 ("the deadline").

[5] Thus, MDV instructed its external solicitors to prepare the DSA. The external solicitors prepared the DSA and sent it to MDV. The DSA was at all times in MDV's possession. R1 was not privy to the contents of the DSA. The DSA was never disclosed or forwarded to R1 for its perusal/approval.

[6] There is some controversy as to whether the DSA was internally discussed and approved by MDV's management and whether a decision had been made that the DSA was ready to be forwarded to R1. This is dealt with in the later part of the judgment. There is no doubt that R1 was aware that the settlement was to abide by the terms as per MDV's letter dated 19 February 2018.

[7] However, the parties ultimately did not execute any settlement agreement on or before the deadline or at all. By a letter dated 13 April 2018 MDV intimated to R1 that the settlement was no longer viable. MDV's gave their reasons for taking the stand as to the alleged non-viability of the settlement. MDV's said reasons are not relevant for present purposes, although they will be highly relevant for purposes of the trial.

[8] In seeking discovery of the DSA, the respondents' position was, inter alia, that even though the DSA was a solicitor's work product, there was (in this case) "no confidentiality" as to its contents, as the terms of the proposed settlement were known to the parties and in any event, the DSA was eventually to be extended to R1 for its perusal and approval. As such, the respondents' position is that the DSA was not protected by privilege.

[9] MDV resisted the application for discovery on the basis that the DSA is neither relevant nor necessary for the fair disposal of its suit and/or the Counterclaim. MDV also maintained that the DSA is protected by legal professional privilege (s 126 Evidence Act 1950 ).

[10] One of the issues in this appeal is whether a solicitor's work-product (in this case, the DSA) which was prepared for and given to