JUDGMENT

This is an application by summons in chambers by the plaintiff for discovery and production of documents under O 24 r 12 and 13 of the Rules of the High Court 1980 (RHC). The application is for an order that the defendant be ordered to produce a report known as the adjuster's report. The report was prepared on the instruction of the defendant to determine the claim by the plaintiff who had suffered loss and damage to the stock-in-trade in the premises of Chin Seng Supermarket during the flood in November 1979. This application arose in the course of the trial of the main suit. In the suit, the defendant denied the liability and the quantum claimed. Encik Omar Bakhi Ahmad, learned counsel for the defendant, objected to the application on the ground of privilege and that the report if produced, would prejudice the defence. Encik R.G. Naidu, for the plaintiff, argued that the adjuster's report was an independent report and not privileged from disclosure. He further said that the report was necessary to support the plaintiff's claim.

The only relevant provision in our Evidence Act 1950 (the "Act") governing professional privilege is section 126. The privilege is strictly limited to legal communications of solicitor and client relationship. Any disclosure, if it is to take place, must be with the absolute consent of the client (see Chua Su Yin & Co. V Ng Sung Yee (1991) 2 MLJ. 348), as privilege is that of a client (per Eusoff Chin J (as he then was) ) in Dato' Au Ba Chai and Ors V Koh Keng Kheng and Ors (1989) 3 MLJ. 445 at 447). With regard to the scope and the limitation of the privilege, Ong CJ (Malaya) in PP V Haji Kassim (1971) 2 MLJ. 115 (FC) said at page 116:

"The only relevant provision in our Evidence Ordinance excluding professional confidences is section 126, which states that no advocate and solicitor shall at any time be permitted, unless with his client's express consent, to disclose any communications made to him and in the course of his employment as such. This rule is founded on the principle that the conduct of legal business without professional assistance is impossible and on the necessity, in order to render such assistance effectual, of securing full and unreserved intercourse between the two. This privilege does not protect professional disclosures made to clergymen or doctors. See Phipson on Evidence, 10th Edition, para 587 and commentaries in Sarkar on section 126 of the Indian Evidence Act."

(See Evidence Practice & Procedure p 663 by learned author S. Augustine Paul (now Judicial Commissioner) ).

In Government of the State of Selangor V Central Lorry Service & Constructions (1972) 1 MLJ. 102, Mohamed Azmi J (as he then was) ruled that the file containing tender documents submitted to the government was not privileged against discovery and inspection by the defendants. See also Longthorn V British Transport Commission (1959) 2 All E.R.32 where the report of the private inquiry into an accident was held not to be privileged.

For ease of reference, I reproduce the provisions of O 24 r 12 and 13 of the RHC under which the application for discovery is made, and they are:

0 24 r 12:

"At any stage of the proceedings in any cause or matter the Court may, subject to rule 13(1), order any party to produce to the Court any document in his possession, custody or power relating to any matter in question in the cause or matter and the Court may deal with the document when produced in such manner as it thinks fit."

O 24 r 13:

"(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing rules unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs."

"(2) Where on an application under this Order for production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground, the Court may inspect