Discoveries In Maritime Claims: (Part One) Pre'Trial Discovery And Specific Discovery Of Documents

• Published date: 16 February 2023
• Subject Matter: International Law, Transport, Marine/ Shipping, International Trade & Investment
• Law Firm: Shearn Delamore & Co.
• Author: Rajasingam Gothandapani and Justin Tong Wei Hang

Introduction

Documents are nine tenth of civil litigation. Maritime claims, like most civil litigation stand or fall on the strength of documentary evidence.

Whilst the importance of documentary evidence cannot be overstated, the question remains as to what could a litigant do if the litigant does not have sufficient documents to support his/her claim in Court?

This article will provide an overview of what are the legal armoury available within the Malaysian legal regime for a litigant to gain access to relevant and necessary documents and/or information to support his/her case in Court. This article will also discuss how these legal devices apply in a maritime claim.

Discoveries in general

Pre-trial discovery

In Malaysia, the legislature is cognizant of the need for litigants to have access to all relevant and necessary documents which could support the litigant's case or could undermine the opponent's case.

As such, the Rules of Court 2012 stipulated that any litigant who has filed a claim in Court would be subject to the Court's pre-trial directions to disclose all documents which are relevant to the case before the Court adjudicates the case at trial. Those documents disclosed must also be made available for the adverse party's inspection (save where the documents are privileged)1 .

Relevance test

But what amounts to a "relevant document" to be disclosed to the adverse party? Simply put, a document is relevant if the document (a) is a document which the party will rely in Court (b) will adversely affect the party's own case (c) adversely affect the adverse party's case (d) support the adverse party's case.

To add some colour to the scope of "relevant document", Malaysian Courts have also ruled that documents are also "relevant" if they could either directly or indirectly enable the party requiring the documents to advance its own case or to damage the case of the adversary.

The notion of "directly or indirectly" appears to be a nuanced notion which opens the scope of discovery to an unlimited sea at first glance but this is not the case. What the Court had in mind when His Lordship ruled that discoverable documents must be "directly or indirectly relevant" was that a document is "directly or indirectly relevant" if the document could fairly lead the party to a train of enquiry towards exploring materials which may advance its own case or to damage the case of the adversary.

Specific discovery

Now, we have addressed the issue of "relevance", but what...