PRODUCTION OF DOCUMENTS REFERRED TO IN PLEADINGS
In Interactive Digital Finance Ltd and another v Credit Suisse AG and another [2023] SGHC 198, Chua Lee Ming J in the High Court had the opportunity to decide an appeal in relation to whether the Assistant Registrar had the power to order production of the documents that were referred to in the statement of claim under the Rules of Court 2021.
This appeal concerned a procedure under the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“2014 Rules”) which was not expressly provided for under the Rules of Court 2021 (“2021 Rules”) (at [1]).
Under Order 24 rule 10 and rule 11 of the 2014 Rules (at [21]), a party could serve a notice to produce documents referred to in pleadings or affidavits for inspection and to take copies thereof (“NTP”); if the other party failed to produce, the court could order that party to do so (at [1]).
Facts. In a claim filed under the 2021 Rules, the 1st defendant, Credit Suisse AG, filed and served an NTP on the claimants in the form prescribed under the 2014 Rules, setting out 76 requests for documents purportedly referred to in the claimants’ statement of claim (“SOC”) (at [5]).
At the same time, by way of a letter, the 1st defendant sought the claimants’ agreement for an extension of time for it to file its defence (at [5]). The claimants responded by saying they would not provide the documents and that they did not agree to the sought extension of time (at [6]).
Therefore, the 1st defendant wrote to the court requesting the court to issue directions on the same (at [7]).
The Assistant Registrar (“AR”) conducted a case conference on 2 May 2023 where she made certain directions, including for the claimants to “… produce to the 1st defendant … any document that was referred to in the statement of claim and that was subject to the claim against the 1st defendant …”, and to extend the time for the 1st defendant to file its defence (at [8]).
Out of the 76 requests in the NTP, the claimants (at [10]):
Produced the documents in 23 of the requests;
Said that the documents in 5 of the requests were not within their possession or control;
Took the position that the 1st defendant was not entitled to the documents in 47 of the requests because the SOC “did not make any reference and/or direct allusion to the documents, and/or the documents did not relate to their claim against the 1st defendant”; and
Omitted to deal with one of the requests.
Ultimately, the claimants filed the present appeal against the AR’s decision given at the case conference (at [14]).
This article will only focus on the issue of whether the AR had the power to order production of the documents that were referred to in the SOC (at [19(a)]).
Order not based on NTP procedure. As the NTP procedure no longer exists under the 2021 Rules (at [21]), the “claimants submitted that the AR erroneously drew from the NTP procedure under the 2014 Rules in making her order.” (at [22])
However, the High Court disagreed, and found that the AR “had approached the matter based on the principles undergirding the 2021 Rules. She found it “odd” that documents which were referred to in the SOC were not being given to the 1st defendant and expressed that view that this was not in line with the Ideals in the 2021 Rules.” (at [22])
Order 11 of the 2021 Rules. The High Court started with the relevant provisions of the 2021 Rules which deal with the production of documents, being Order 11 (at [24]).
“Order for production (O. 11, r. 2)
2.—(1) The Court may, at a case conference, order that the parties in an action must within 14 days after the date of the case conference, exchange a list of and a copy of all documents in their possession or control, which fall within one or more of the following categories:
(a) all documents that the party in question will be relying on;
(b) all known adverse documents;
(c) where applicable, documents that fall within a broader scope of discovery —
(i) as may be agreed between the parties or any set of parties; or
(ii) as ordered by the Court.
…
Production of requested documents (O. 11, r. 3)
3.—(1) The Court may order any party to produce the original or a copy of a specific document or class of documents (called the requested documents) in the party’s possession or control, if the requesting party —
(a) properly identifies the requested documents; and
(b) shows that the requested documents are material to the issues in the case.
…
Court’s power to order production of documents (O. 11, r. 4)
4. Subject to Rules 5, 8 and 9, the Court may, of its own accord and at any time, order any party or non-party to produce a copy of any document that is in the person’s possession or control.”
The High Court noted that (at [26] – [31]):
An order generally under O 11 r 2 of the 2021 Rules may be made at a case conference without requiring an application for the same.
But O 11 r 3 of the 2021 Rules, which deals with the production of specific documents or classes of documents, contemplates an application being made.
The High Court agreed with the 1st defendant that the AR had the power to make the order that she made pursuant to O 11 r 4 of the 2021 Rules, although there was no application for production of the specific documents requested.
Insofar as the production was for documents referred to in pleadings, such documents could be sought under O 11 r 4 of the 2021 Rules before the single application pending trial (“SAPT”).
Principle underlying the NTP procedure. The High Court noted that the “principle underlying the NTP procedure was that the requesting party should be conferred the same advantage as if the documents referred to had been fully set out in the pleadings …” (at [32]) and took the view that this principle “was sound and remained relevant under the 2021 Rules.” (at [33])
See the High Court’s observations at [33] – [34] as excerpted below:
“33 In my view, the principle was sound and remained relevant under the 2021 Rules. The reference in pleadings to documents, in and of itself, was a form of “disclosure” of the documents: SK Shipping at [17]. Such documents therefore formed part of the pleaded case. It was logical and in the interests of justice that if requested by the other party, such documents should be produced. The other party was entitled to know the pleaded case against him. In my view, generally speaking, it followed that a party was entitled to the production of documents that were referred to in the statement of claim or defence, before it filed its defence or reply. As similarly observed by Professor Jeffrey Pinsler SC in Singapore Court Practice (LexisNexis Singapore, 2020) at para 24/10/1, it “may be necessary for the defendant to consider the documents referred to in the statement of claim before he can plead the defence with sufficient particularity”.
34 In SK Shipping (at [17]), the court also noted that the party referring the document in its pleadings must show good cause to oppose the production of the document. It was not necessary for me to decide whether and when a party could justify not producing documents referred to in its pleadings, but it seemed to me that such instances (if any) would be rare and exceptional.”
O 3 r 2(2) of the 2021 Rules. The High Court took the view that the AR also had the power to make the order for the production of documents referred to in the SOC pursuant to O 3 r 2(2) of the 2021 Rules (at [35]) which provides as follows:
“(2) Where there is no express provision in these Rules or any other written law on any matter, the Court may do whatever the Court considers necessary on the facts of the case before it to ensure that justice is done or to prevent an abuse of the process of the Court, so long as it is not prohibited by law and is consistent with the Ideals.”
The High Court’s reasoning is set out below (at [37] – [38]):
“37 In the present case, there was no express provision in the 2021 Rules specifically dealing with the production of documents that were referred to in the pleadings. However, as discussed earlier, as a matter of principle, parties should be entitled to such documents. In my view, O 3 r 2(2) gave the AR the power to make the order that she did, at a case conference. It was necessary to ensure that justice was done, and it was consistent with the Ideals [under O 3 r 1(2)], in particular those relating to expeditious proceedings (O 3 r 1(2)(b)) and fair and practical results suited to the needs of the parties (O 3 r 1(2)(e)). Bearing in mind the principle involved, I did not think that it was necessary to require the 1st defendant to file an application or to seek the court’s direction or approval to make the application before the SAPT.
38 Again, bearing in mind the principle involved, in my view, a party that requires production of documents referred to in pleadings needs only to make a written request. The party requested should produce such documents unless it is disputed that the documents requested are documents that are referred to in the relevant pleadings.”
Significance. This decision is an important reminder on the flexibility afforded to the Court under the 2021 Rules to ensure justice is done in accordance with the Ideals.
Nevertheless, the High Court was also careful to make clear that its decision was limited in scope, and was not intended for parties to try to bypass the SAPT procedure (at [40]):
“40 My decision in this appeal is limited to requests for the production of documents that are referred to in the pleadings. I have upheld the AR’s decision to make the order without requiring an application to be made and before the SAPT stage because of the principle involved. This decision does not mean that parties can try to bypass the SAPT procedure by simply writing to the court to seek directions or orders. The SAPT procedure can be expected to apply in its full rigour to the matters referred to in O 9 r 9(4) in most cases.”
This article only addresses the first portion of the decision where the High Court found, in principle, that the AR had the power to order production of documents referred to in the SOC. However, readers may be interested to read the rest of the decision in relation to, for example, the distinction between what is “explicitly referred to or directly alluded to” as opposed to “merely referred to by inference” (at [43]) in the pleadings, in terms of what would fall under the scope of such a request to produce.
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