Prior to 2012

The order for discovery in Singapore prior to 2012 is governed by the Rules of Court
(Cap 322, R 5, 2006 Rev Ed).
By the virtue of Order 24 Rule 1, the Court may at any time order any party to a cause
or matter to give discovery by making and serving on any other party a list of the documents
which are or have been in his possession, custody or power, and may at the same time or
subsequently also order him to make and file an affidavit verifying such a list and to serve a
copy thereof on the other party.
Provided under Order 24 Rule 2, the documents which a party to a cause or matter
may be ordered to discover are (a) the documents on which the party relies or will rely and (b)
the documents which could (i) adversely affect his own case, (ii) adversely affect another
partys case or (iii) support another partys case.
Order 24 Rule 3 further state that an order under this Rule may be limited to such
documents or classes of documents only, or to only such of the matters in question in the
cause or matter, as may be specified in the order.
By virtue of the Order above, the order for discovery is subjected to the the test of
necessity where this test is used to determine whether the documents is realy needed in
proving the Plaintiffs claim. If the order for discovery is used for a mere fishing expedition,
the Court will not grant the order. Secondly, the Paintiff in applying for the order for
discovery must satisfy the requirement of which the documents must be in the posession of
the Defendant.
In the case of Deutsche Bank AG v Chang Tse Wen and Others 1, the Defendant
applied for the order of discovery in providing electronic copies of electronically stored
documents in lieu of inspection under Practice Direction No 3 of 2009 (PD3/2009) for an
order that parties comply with an electronic discovery protocol when general discovery of
documents is given in this case .
However, the Plaintiffs preliminary objection to this application is that PD 3/2009
does not apply to a situation where parties have not reached a prior agreement to adopt an
electronic discovery protocol during general discovery. The Plaintiff argues that the opt-in
1

[2010] SGHC 125

nature of PD 3/2009 means that, insofar as its applicability during general discovery is
concerned, both parties must first agree to adopt an electronic discovery protocol before PD
3/2009 applies during general discovery. Further, the Plaintiff objects to adoption of such a
protocol as it would unfairly prejudice them since they are ready to proceed with general
discovery by providing a list of documents and photocopies of documents disclosed in the list
in the traditional manner.
The Defendant argue that the court has extensive powers to order compliance with
protocol during discovery. This is either part of the courts inherent powers (preserved under
Order 92, rule 4) or derived from the specific provisions in Order 34A, which is the source of
the courts powers to make appropriate directions for the just, expeditious and economical
disposal of a matter.
The Court held that the opt-in framework operates consistently both during general
discovery and when applications for further or specific discovery are made either. At the time
of general discovery, where parties have a pre-existing agreement to adopt an electronic
discovery protocol, they may refer any disputes over any proposed term to the court for
directions, and where one party seeks to adopt an electronic discovery protocol but the other
does not agree, the party seeking discovery may make an application under PD 3/2009. While
at the time of post general discovery, any party seeking further discovery or specific discovery
may make an application under PD 3/2009. No case is shut out under this construction, unless
parties in the case agree not to apply PD 3/2009 either expressly or tacitly by conduct.
Thus, the Court grant the order for discovery on the basis of necessity even the parties
have not reached a prior agreement to adopt an electronic discovery protocol as the
documents is essential to prove the Defendants claims
The general rule is that discovery is only allowed between plaintiff and defendant and
not allowed against a stranger or third party (Norwich Pharmacol Co v Commissioners of
Customs & Excise)2. Despite this, there is always exception to every general rule.
Under the Rules of Court (Cap 322, R 5, 2006 Rev Ed), Order 24, Rule 6 (1) states
that an application for an order for the discovery of documents before the commencement of
proceedings shall be made by originating summons and the person against whom the order is
sought shall be made defendant to the originating summons. Order 24 Rule 6 (2) states that an
2

[1974] AC 133.

application after the commencement of proceedings for an order for the discovery of
documents by a person who is not a party to the proceedings shall be made by summons,
which must be served on that person personally and on every party to the proceedings. This
shows that discovery against third party is permissible in law.
The essential requirements in Order 24 Rule 6(2) and 6(3) are (a) that the application
is made by summons, (b) that it be supported by an affidavit that describes the documents
sought, explains their relevance, and deposes to the belief that the person against whom the
order is sought has the documents.
In the case of Umci Ltd V Tokio Marine & Fire Insurance Co (Singapore) Pte Ltd
And Others3, the respondent-insured maintained a marine open policy with the applicantinsurer. After the respondent's claim under the policy was rejected by the applicant, it
commenced an action against the applicant for the claim amount. Central to the dispute
between the parties was whether the respondent's cargo had been damaged during or before
transit. The respondent submitted a photocopy of a cargo checklist which suggested that
damage had occurred in transit. This version of the cargo checklist was different from the
original document inspected by the applicant which suggested that damage had occurred
before shipment. The respondent's representative filed an affidavit in which it was stated that
the cargo checklist had been prepared by the freight-forwarding company ("Morrison") acting
by its representative ("Lim"). Faced with this, the applicant sought a court order compelling
Morrison to provide samples of Lim's handwriting found on the originals of similar checklists
made in the normal course of business ("documentary samples"), and Lim to make and
provide some specific handwriting samples ("handwriting samples"). Morrison and Lim were
not parties to the action but were served with and contested the application.
The Defendant argue that there is no distinction between the documentary samples and
the handwriting samples. The Defendant had also taken steps in affirming that both of the
documentary sample is the same.
The court held that this is an order that they are empowered to make. It is implicit from O 24 r
6(7) that an order may be made requiring the production of documents would extend to one
requiring production of the originals into the possession of the applicant subject to any
necessary safeguards as to their preservation. Thus, the order of discovery by the Plaintiff
towards a stranger to claim are allowed.
3

[2006] 4 SLR 95

In conclusion, under Order 24 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed)
permits the order for discovery. This order also extends to an order for discovery towards a
stranger which is stated in Order 24 Rule 6 of the Rules of Court (Cap 322, R 5, 2006 Rev
Ed).