August 24 2010
A recent High Court decision departed from the principle that 'late discovery is better than no discovery at all' when it disallowed the introduction of aerial photographs that were both "relevant" and "crucial" to both the defendants' and plaintiffs' cases on the grounds of late disclosure.
In Agi ak Bungkong v Ladang Sawit Bintulu Sdn Bhd,(1) the plaintiffs had claimed native customary rights over lands situated in Bintulu, Sarawak. The defendants responded by producing aerial photographs that were intended to disprove the plaintiffs' claims over the use of the land. These photographs were first disclosed as an annexure to a witness statement, which was produced only as the witness was about to enter the witness box. The introduction of these aerial photographs was objected to by the plaintiffs' counsel on the grounds that:
The judge did not immediately rule on the objections, but reserved the issue until after the close of submissions.
The judge observed that while the liberal approach to litigation(2) favours the introduction of evidence - even if it is produced at a late stage - on the basis that the aim of a court is to attain justice, the modern approach to litigation justifies the exclusion of such evidence on the grounds of delay alone. The judge held that the modern approach contemplates that cases must be disposed of efficiently. Accordingly, the liberal approach, which rests on the concept that the courts' aim is to decide the rights of parties and not to punish them for mistakes in the conduct of their case, is inefficient and inconsistent with the case management regime and rationale now common throughout Commonwealth jurisdictions.
The case is noteworthy for two reasons. First, the judge was prepared to exclude the aerial photographs as evidence on the basis that to allow fairly their admission into evidence, he would have had to allow the plaintiffs to reopen their case and take time to consider the new evidence. In so doing, he had regard to the inconvenience that this would cause to other litigants that also had a call on the time and limited resources of the courts generally, but no doubt also to the inconvenience occasioned to his particular court and the plaintiffs in the suit before him.
In general, inconvenience has never, by itself, been regarded as grounds to prevent a late step in proceedings - whether to introduce documents or even to amend pleadings. The courts have usually required prejudice to be demonstrated. This case, therefore, appears to open the door for inconvenience to be a ground to decline the exercise of discretion as distinct from prejudice.
Second, if indeed the decision was motivated by a desire to see modern litigation conducted more efficiently, it is puzzling why the judge initially allowed the aerial photographs to be tendered instead of ruling that they were inadmissible at the outset, and thus saving the added time and costs caused to the parties in having to deal with the issue of the aerial photographs during the remainder of the trial.
In arriving at his decision, the judge appears to have elevated a party' s failure to comply with case-management directions from a relevant consideration in exercising his discretion to a higher plane. He highlighted the observations in Sali v SPC Ltd, stating that:
"In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognized by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings."
Litigants in Malaysia should now stand duly warned that the permissive ways of the past may be long gone. Early case preparation and awareness are essential, and lapses in attention by lawyers and litigants alike will be punished, or at least, not easily forgiven.
For further information on this topic please contact Nahendran Navaratnam or Wong Wye Wah at Kadir Andri & Partners by telephone (+603 2078 2888), fax (+603 2078 8431) or email (firstname.lastname@example.org or email@example.com).
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Wye Wah Wong