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Digest 4
A. General Overview
1. In general, the production of documents under the Rules of Court 2021 (“ROC 2021”) is guided by the five Ideals(1) and the following two principles (“Principles”):
(a) A claimant is to sue and proceed on the strength of the claimant’s case and not on the weakness of the defendant’s case; and
(b) A party who sues or is sued in court does not thereby give up the party’s right
to privacy and confidentiality in the party’s documents and communications.(2)
2. The Court may allow a broader scope of production of documents where the Court determines that it is in the interests of justice to do so.(3) It will be in the interests of justice to allow such
broader scope of production of documents where it could aid in disposing fairly of the proceedings.(4)
B. What documents will be subject to production?
3. The rules on production of documents under ROC 2021 seek to narrow the scope of production of documents and reduce the time and costs expended in the production of documents process.
4. As a baseline, all parties
are required to produce and exchange the following documents in their possession or control:
(a) All documents that the party will be relying on(5); and
(b) All known adverse documents, which include documents which a party ought reasonably to know are adverse to its case.
(6) In other words, the obligation to produce documents is not limited to the production of adverse documents that a party is actually aware of, but includes the production of adverse documents that the party could have
knowledge about through reasonable checks and searches.
5. The term “control” has a wide meaning and the obligation to produce documents would include, for example, documents in the party’s custody or power.
6. The parties may agree between themselves
to produce and exchange documents falling within a broader scope.(7)
7. A requesting party may apply for the production of a specific document or class of documents in a party’s
possession or control, but the Court will not order the production of:
(a) Documents that merely lead a party on a train of inquiry to other documents, except in a special case(8);
(b) A party’s private or internal correspondence unless such
correspondence are known adverse documents, or in a special case(9); and
(c) Subject to any written law, documents subject to any privilege or where production would be contrary to the public
interest(10).
8. A table summarising the production of documents regime under ROC 2021 is set out below.
| What may be subject of production | To be produced only in a Special Case | What will not be ordered to be produced |
|---|---|---|
- Documents the party will be relying on.
- All known adverse documents which include: o Documents which a party ought reasonably to know are adverse(11); and
- Documents agreed between the parties may be subject of production. | - Documents that merely lead a party on a train of inquiry to other documents. - Private or internal correspondence (which are not known adverse documents). | - Privileged documents(12). - Where production would be contrary to the public interest(13). |
9. Subject to certain circumstances, the Court may, of its own accord and at any time, order a party or non-party to produce a copy of any document that is in the person’s possession or control.(14)
C. Affidavits of evidence-in-chief before production of documents
10. Under ROC 2021, the Court may order the parties to file and exchange affidavits of evidence-in-chief (“AEICs”) of all or some witnesses after the pleadings have been filed and served, but before any production of documents and
before the Court considers the need for any application.(15)
11. The rationale for ordering AEICs before the production of documents includes, among other things:
(a) Avoiding the possibility that witnesses may adjust their evidence to match disclosed documents;
(b) Crystallising the key issues, and streamlining the matters to be dealt with in the single application pending trial;
and
(c) Reducing the scope of disclosure, and potentially obviating the need for expert evidence.
12. With the above in mind, an order for AEICs before the production of documents is not confined only to exceptional circumstances. For example, an order for AEICs before the production of documents may be made for parties to put their factual
evidence in so that the Court can thereafter decide whether expert evidence is even required.
13. After pleadings have been filed and served, parties will be invited to state their views on whether such an order will be appropriate.
In appropriate circumstances, such as where the parties are unable to agree on whether the order should be made, parties will be directed to attend a further Case Conference before a Judge to determine this issue.
14. The Court,
when ordering AEICs before any production of documents, may order the parties to:
(a) File the AEICs of all or some of their witnesses; and
(b) File the AEICs sequentially or in any sequence.
15. Where the Court orders AEICs before the exchange of documents, the single application pending trial should not be filed until after all AEICs have been filed and served.
*This Digest highlights certain key features and points of note, which are intended to assist court users in navigating the Rules of Court 2021 (“ROC 2021”), and serves to provide general information only. Reference should always be made to the relevant provisions in the ROC 2021, any applicable written law and practice directions, and any applicable guidance that may be found in case law. This, and the other digests, do not, in any way, affect the Court’s exercise of its discretion. The Court may, based on the circumstances of each case, depart from the digests. The digests are not intended to be, and should not be construed as, legal advice, and may be revised from time to time.Footnotes
(1) For further information, please refer to Digest 1.
(2) O 11 r 1(2) of ROC 2021.
(3) O 11 r 1(3) of ROC 2021.
(4) O 11 r 11(4) of ROC 2021.
(5) O 11 r 2(1)(a) of ROC 2021.
(6) O 11 r 2(2)(2) of ROC 2021.
(7) O 11 r 2(1)(c) of ROC 2021.
(8) O 11 r 5(1) of ROC 2021.
(9) O 11 r 5(2) of ROC 2021.
(10) O 11 r 5(3) of ROC 2021.
(11) O 11 r 2(2) of ROC 2021.
(12) O 11 r 5(3) of ROC 2021.
(13) O 11 r 5(3) of ROC 2021.
(14) O 11 r 4 of ROC 2021.
(15) O 2 r 8 of ROC 2021.
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