In the course of proceedings, parties may file various applications in court to seek various relief and orders from the court which could provide temporary relief pending disposal of the matter at trial, to assist that party in preparation of its case leading to trial or to even settle the dispute by consent.

Interlocutory application

In the interim period, there are various applications that could be made by one party or the other to strengthen its position or weaken the other party’s position.

Otherwise one party may seek particulars of the claim or defence from the other. On other occasions, specific information may be sought through interrogatories. Yet in other cases, steps may be taken to get the other side to disclose documents.

Documents subject to discovery

A court can order the discovery of the following documents (order 24, rule 3(1), Rules of Court 2012 (ROC)):

• Documents that the party relies on or will rely on.
• Documents that could adversely affect the party's case, adversely affect another party's case or support another party's case.

Discovery is ordered for relevant documents. An order for discovery is subject to the the test of "necessity". The ROC does not provide a specific period of time within which discovery must take place. This is handled through courts' directions during the case management meeting, and will depend on the volume and complexity of the documents involved.

Failure to make discovery

In the case of failure to comply with a discovery order, the court has wide discretionary powers to (order 24, rule 16, ROC):

• Dismiss the claimant's action if the claimant fails to make discovery.
• Strike out the defendant's defence if the defendant fails to make discovery.
• Make a judgment in default of discovery by the defendant

...

Other non-disclosure situations

Confidential documents must be disclosed if they are relevant, except where such disclosure is prohibited by law. Privilege does not apply to confidential documents. The court can allow confidential documents to be redacted or produced for limited viewing.

Request for further information—overview

There are two circumstances wherein the Rules of Court 2012 (P.U. (A) 205/2012) allows you to obtain further information from the other party to an action.

The first situation is when the other party serves on you a pleading that fails to set out their case with adequate details and clarity. The appropriate mode of discovery in such a situation is to request for further and better particulars.

The second situation is when you wish to obtain admissions of facts from the other party in order to minimise the issues to be tried and make your burden of proof easier. The proper means of discovery in such a situation is to serve interrogatories.

Request for further and better particulars

Order 18, rule 12(1) of the Rules of Court 2012 (P.U. (A) 205/2012), requires the pleadings in an action to contain the necessary particulars of any claim, defence or any other matter pleaded. The case of Dato’ Seri Dr Ling Liong Sik v Krishna Kumar s/o Sivasubramaniam [2002] 2 MLJ 278 ⤤ held that the purpose of this requirement is for both parties to have a full understanding of the other party’s position so that neither party is taken by surprise at the trial.

The Rules of Court 2012 (P.U. (A) 205/2012), O 18, r 12(5) states that request for further and better particulars will normally be made as soon as after a pleading is served. However, an order for further and better particulars will not be made before service of the defence, unless the court orders otherwise.

According to the Rules of Court 2012 (P.U. (A) 205/2012), O 18, r 12(6), you must make a request for further and better particulars by letter before applying to the court for an order. The further and better particulars requested or ordered and supplied must be served in accordance with Form 31 as laid down by the Rules of Court 2012 (P.U. (A) 205/2012), O 18, r 12(7).

In general, you must supply the requested particulars if the response would undoubtedly form part of your client’s pleadings. However, there may be valid reasons why you cannot or must not respond. If you object to the other party’s request, you must notify them promptly with reasons for your objection within the time frame given in the request.

If the other party fails to respond to your request within the time frame given in the request or the response is inadequate, you may apply to the court for an order for further and better particulars following the Rules of Court 2012 (P.U. (A) 205/2012), O 18, r 12(3). The court struck out the pleadings of the party failing to comply with an order in the case of Mirzan bin Mahathir v Star Papyrus Sdn Bhd [2000] 6 MLJ 29 ⤤.

(emphasis ours)

Interrogatories

Pursuant to the Rules of Court 2012 (P.U. (A) 205/2012), O 26, r 1(1), you may apply to the court in Form 44 for an order to serve on the other party interrogatories in relation to any matter in question. The Rules of Court 2012 (P.U. (A) 205/2012), O 26, r 1(2) requires the application to be accompanied by a copy of the proposed interrogatories in Form 45.

The court may then make an order using Form 46 requiring the interrogated party to answer the interrogatories by affidavit in Form 47 within a specified period of time.

The court has the discretion under the Rules of Court 2012 (P.U. (A) 205/2012), O 26, r 1(3) to allow or disallow interrogatories. The court will only allow the interrogatories if the objective is to obtain admissions of facts for disposing fairly of the cause or matter, or saving costs.

It must be noted that leave of the court is not required where the interrogatories are made before the close of pleadings as stated in the Rules of Court 2012 (P.U. (A) 205/2012), O 26, r 2. The case of Shum Kai Cheong v See Too Woon Yee [1998] 4 MLJ 155 ⤤ confirms that interrogatories are as of right if made before the close of pleadings. However, leave of the court is a requisite condition where the interrogatories are made after the close of pleadings. The party must explain the filing of the application for interrogatories after the close of pleadings. The case of Yew Yin Lai v Teo Meng Hai & Anor [2007] 4 MLJ 703 ⤤ held that absence of any explanation for the delay is fatal to the application.

The Rules of Court 2012 (P.U. (A) 205/2012), O 26, r 3 governs the situation where the interrogated party is a corporate or unincorporated body. Such interrogatories must be answered by an individual member or officer who is sufficiently familiar with the facts in issue. If more than one person is required to answer the interrogatories, it would be prudent to include a note at the end of the interrogatories in relation to that.

The course of action to be followed where the interrogated party answers the interrogatories insufficiently is contingent on whether the interrogatories have been served with or without an order of the court.

If the interrogated party fails to comply with an order, the court may dismiss the action or strike out the defence and enter judgment accordingly under the Rules of Court 2012 (P.U. (A) 205/2012), O 26, r 7. In addition, the court may make an order for committal.

The party in whose favour an order for costs is made at the conclusion of the cause or the matter in which the proceedings arise shall be entitled to his costs of the proceedings in respect of which such an order is made.

A mention was given judicial consideration in the decision of Ger-Mal Sdn Bhd v Zulkifli Hassan & Anor [2001] 6 CLJ 376 where Suriyadi J said as follows:

"I need to add that even though the terminology of “mention” has no place in the Rules of the High Court 1980, courts have generally adverted to its usage not infrequently, due to its acceptability by the legal fraternity and the judicial system. In general, that word has been accepted to cover a date supplied by the court, specifically fixed to resolve certain questions, but certainly does not include a hearing date. To be more specific, a court may fix a mention date purposefully to obtain some feed back from the parties due to some reason or other, or for some other administrative reasons. In contradistinction, if a hearing date were supplied, it is universally accepted that on such a date a trial is anticipated (PP v. Ng Goh Weng[1978] 1 LNS 159; [1979] 1 MLJ 127; Chung Sow Mun v. TRR Kurup[1989] 3 MLJ cix). At that trial date there will be a final determination of the case, whereupon judgment may be given (Merlimau Pegoh Limited v. Collector of Land Revenue Jasin[1969] 248; Koperasi Serbaguna Cuepecs Tanggungan Bhd v. City Investments Sdn Bhd[1983] 1 LNS 13; [1983] 2 MLJ 33)."

What Is a Court Mention?

For civil matters, this is typically a time allocated to the parties attending for the purposes of furthering the matter. Time spent appearing at a Court mention usually involves putting in place a timetable for the remainder of proceedings for parties to follow and abide by. It may also involve the following:

• filing of a defence
• exchanging of evidence
• dealing with preliminary issues
• or requests to move the matter to another Court

A mention of a case is the early part of the court’s due process to ensure all necessary documents and eviden­ce are submitted.

Hearing of application

Generally, interlocutory applications will be heard by a judge in chambers unless otherwise provided in the Rules of Court 2012 (P.U. (A) 205/2012), O 32, r 11(1), any written law, practice directions or on the direction of the judge.

An application may also be heard by a registrar who is given the same powers as a judge in such applications under the Rules of Court 2012 (P.U. (A) 205/2012), O 32, r 9.

Prior to the hearing, it is good practice for parties to exhaust all affidavits and file their respective written submissions. During the hearing, parties may take the court through their submissions or highlight salient points therein. They may also make further oral arguments and reply to arguments put forward by the other party.

At the conclusion of the hearing, the court will either deliver its decision and make the necessary orders or adjourn to another date for decision.