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.   Where appropriate, the Registrar may, at the Registrar’s Case Conference (“RCC”), order parties 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.    While a requesting party may apply or request for the production of a specific document or class of documents in a party’s possession or control, 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.

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 exchange of documents (“AB4D”)

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 exchange of documents and before the Court considers the single application pending trial (“AB4D”).⁽¹⁵⁾

11.   The rationale for ordering AB4D 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 (“SAPT”); and

(c)   Reducing the scope of disclosure, and potentially obviating the need for expert evidence. 

12.   With the above in mind, an order for AB4D will be the default and is not confined only to exceptional circumstances. For example, an order for AB4D may be made for parties to put in their factual evidence first with a view for the Court to decide subsequently whether expert evidence is even required. By contrast, an order for AB4D may not be appropriate: (a) where highly relevant documents which are necessary for a party to prepare its evidence are in the possession or control of the other party only; or (b) where a party has possession or control of only some of the evidence, but the circumstances in which the evidence is not complete are attributable to the default of the other party.

13.   After pleadings have been filed and served, parties will be invited to state their views on whether such an order will be appropriate. 

14.   In cases where parties are unable to agree on an AB4D order because one or all parties may require certain documents from the other party and the documents sought are very limited in nature, the Registrar may ask the parties whether a limited or targeted request for production of the specified documents will allow the parties to agree to an order being made for AB4D:

(a) If the responding party (or parties) agrees to produce the specified documents and the requesting party (or parties) is satisfied with the documents provided such that all parties can proceed with the filing and exchanging of AEICs, the Registrar will make an order for the production for the specified documents,⁽¹⁶⁾ and thereafter make an order for AB4D by consent and give directions in relation to the filing and exchange of AEICs before the SAPT. 

(b) If the responding party (or parties) does not agree to produce the specified documents, the Registrar will either: 

i. Give directions for the production and exchange of documents under O 11 r 2 of the ROC 2021, followed by directions to file and serve their SAPTs, before the filing and exchange of AEICs (i.e. the Registrar decides that the matter is not suitable for AB4D); or 

ii. Grant the requesting party (or parties) permission to file an application for limited production of the specified documents before the SAPT – in this scenario, the Registrar will decide whether an order for AB4D would be appropriate after the application for production of documents (pre-SAPT) has been decided. 

15.   The parties may also be directed to attend a further Case Conference before a Judge to determine the issue of whether an AB4D order should be made.

16.   The Court, when ordering AB4D, 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. 

17.   Where the Court orders AB4D, the SAPT 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.

Footnote

⁽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.

⁽¹⁶⁾ O 11 r 4 of ROC 2021.