Many potential litigants face the same problem: they believe they have been wronged, but do not have the documents, records, or particulars needed to properly commence legal action.
For example, a contractor may know that works have been completed but does not have the payment certificates or valuation records. A person may be defamed online but does not know the true identity of the person behind the anonymous account. A parent may know that a child was falsely accused or harmed in school, but the investigation records, IT logs, or disciplinary records are kept by the school.
The natural question is: “Can I sue if I do not have the necessary documents?”
In appropriate cases, Malaysian law provides a mechanism known as pre-action discovery.
1. What is pre-action discovery?
Pre-action discovery is a court process that allows a potential claimant to obtain relevant documents before commencing the main lawsuit.
In Malaysia, this is governed principally by Order 24 Rule 7A of the Rules of Court 2012. In summary, an applicant must generally show the following:
(a) the material facts relating to the intended proceedings;
(b) whether the person against whom the order is sought is likely to be a party to the subsequent proceedings;
(c) the documents sought are specified or sufficiently described;
(d) the documents are relevant to the issues likely to arise in the intended claim, or to the identity of the likely parties; and
(e) the person against whom the order is sought is likely to have, or have had, the documents in his possession, custody, or power.
In addition, Order 24 Rule 8 of the Rules of Court 2012 requires the Court to be satisfied that the discovery sought is necessary either for the fair disposal of the matter or for saving costs.
These requirements were summarised by the Court of Appeal in Infoline Sdn Bhd (sued as trustee of Tee Keong Family Trust) v Benjamin Lim Keong Hoe [2017] 6 MLJ 363. The Court emphasised that pre-action discovery is not granted simply because a party asks for documents. The applicant must satisfy the legal requirements and show why the documents are needed before proceedings are commenced.
2. Pre-action discovery is not a fishing expedition
One important point must be made clear: pre-action discovery cannot be used to fish for evidence. It is not a licence for someone to say: “I suspect something is wrong, so please let me inspect all your records to see whether I can find a claim.”
The applicant must already have a proper factual basis for the intended claim. The documents sought must also be specific and identifiable.
In Nor Azihan Alias v PMB Investment Berhad [2023] MLRHU 248, the High Court recognised that discovery should not be allowed where the applicant is merely on a fishing expedition. However, the Court also accepted that not every request for documents amounts to fishing. Where the applicant knows the specific and identifiable subject matter into which he wishes to inquire, the application may be proper.
Put simply, there is a difference between:
“Please give me all your documents so I can see whether you did something wrong”
and
“This specific incident occurred, these specific documents exist or are likely to exist, and I need them to identify the wrongdoer or properly frame my claim.”
The first is likely to be a fishing expedition. The second may be a proper case for pre-action discovery.
3. The documents must be specific
The Court is more likely to allow pre-action discovery where the documents requested are clearly identified.
For example, a request for “all documents relating to the company” may be too wide. However, a request for the company’s bank statements for a specified period, board resolutions relating to a particular transaction, or invoices issued to a named customer, may be sufficiently specific.
In a school or cyber incident, a request may be framed around a specific event, such as investigation reports, IT logs, device records, disciplinary records, or documents identifying the person responsible for the incident.
The guiding principle is this: the applicant must know where the “fish” are. The Court will not allow an aimless trawl through an unlimited sea of documents.
4. When is pre-action discovery useful?
(A) When you need to identify the correct defendant
Sometimes, the claimant knows that a wrong has occurred but does not know the full legal identity of the wrongdoer. For instance, a person may be defamed through an anonymous online post. A child may be falsely accused by another student, but the school refuses to disclose the student’s full particulars or the parents’ details. In such cases, the claimant may need discovery to identify the correct party before commencing proceedings.
This is where the principle in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 becomes relevant. The principle was adopted in Malaysia in First Malaysia Finance Berhad v Dato’ Mohd Fathi Ahmad [1993] 1 MLRA 293. In essence, a person who has become mixed up, even innocently, in the wrongdoing of another may be required to assist the victim by providing information to identify the wrongdoer. Malaysian courts have applied similar reasoning in cases where the applicant needed disclosure to identify unknown wrongdoers.
This is particularly useful in modern disputes involving fake accounts, cyberbullying, anonymous defamation, online fraud, and digital misconduct.
(B) When you need documents to decide whether a claim can be filed
Pre-action discovery may also be appropriate where a potential claimant does not yet know whether a viable claim exists.
The Court of Appeal in Infoline (supra) recognised that pre-action discovery may assist a person who suspects that he has a claim but requires the necessary information to determine whether proceedings can properly be commenced. However, it is not meant to allow a party to complete his entire case before suing. In other words, pre-action discovery is intended to obtain the necessary information to start a proper claim, not to perfect or strengthen every aspect of the claim.
(C) When you need to avoid suing the wrong party
Filing a suit without proper particulars can create unnecessary costs and procedural complications.
If the claimant sues the wrong person, or omits the proper defendant, the parties may later have to deal with applications for amendment, joinder, striking out, further discovery, or subpoenas. This defeats the objective of efficient litigation and is contrary to the purpose of Order 24 Rule 8 of the Rules of Court 2012, which requires discovery to be necessary either for the fair disposal of the matter or for saving costs.
Therefore, pre-action discovery may be especially useful where the missing documents will help the claimant decide whether to sue, who to sue, and how the claim should be properly framed.
5. What if the documents contain personal data?
A common objection is that the requested documents contain personal data, confidential information, or private records. This is not necessarily a complete defence.
Section 39 of the Personal Data Protection Act 2010 recognises circumstances where personal data may be disclosed, including where disclosure is required or authorised by law or by a court order. In Kopitiam Asia Pacific Sdn Bhd v Modern Outlook Sdn Bhd & Ors [2018] MLRHU 1219, the High Court recognised that the Court has the power, within the framework of the Personal Data Protection Act 2010, to direct the disclosure of data in appropriate cases.
Therefore, personal data legislation does not operate as an absolute bar against pre-action discovery. If the documents are necessary for the intended proceedings, the Court may order the disclosure, subject to appropriate safeguards.
6. What should be prepared before applying?
Before filing a pre-action discovery application, a potential claimant should prepare the following:
(a) a clear summary of the dispute;
(b) the factual basis of the intended claim;
(c) the likely causes of action;
(d) the identity of the likely defendant, if known;
(e) a specific list of documents required;
(f) why those documents are relevant;
(g) why those documents are necessary before filing the suit;
(h) evidence that the other party has or had the documents; and
(i) records of previous requests for the documents.
The stronger and more specific the factual foundation, the less likely the application will be criticised as speculative or a fishing expedition.
Conclusion
Pre-action discovery is a useful legal tool, but it must be used carefully. It does not allow a person to rummage through another party’s records in the hope of finding a case. The Court will not assist a speculative claim or an aimless search for evidence.
However, where there is already a real dispute, a proper factual basis, and specific documents are needed to identify the wrongdoer, determine whether a claim exists, or properly frame the intended proceedings, pre-action discovery may be appropriate. In short, Malaysian law recognises that sometimes a person cannot properly sue because the missing documents are in someone else’s hands.
For anyone who says, “I want to sue, but I don’t have the documents,” the real question is not simply whether documents are missing. The real question is whether those documents are specific, relevant, and necessary to an identifiable intended claim. If they are, pre-action discovery may provide the bridge between suspicion and proper litigation.