The principle of 'necessity' in pre-action discovery

26 October 2012

Chin Mun Fong v Standard Chartered Bank 2012 SGCA 38

An important aspect of litigation is the discovery process, through which parties are required to produce documents in their possession, custody or power which are relevant to the issues in the case. Discovery may also be ordered before the commencement of proceedings, through the process of pre-action discovery. However, in order to succeed in an application for discovery, the applicant must satisfy the Court that the documents requested are both “relevant” and “necessary”. In the recent case of Chin Mun Fong v Standard Chartered Bank [2012] SGCA 38 (Chin Mun Fong), the Court of Appeal highlighted that an application for pre-action discovery would only be “necessary” where it enables the potential plaintiff to formulate his or her case for the purposes of commencing an action.

Brief facts

In 2009, the Appellant gave the Respondent bank instructions to enter into a number of commodity investment transactions. A dispute arose as to the currency in which the returns would be paid to the Appellant: the Respondent claimed that it could unilaterally decide whether to pay the Appellant in US dollars or XAU (a unit of measurement for gold); the Appellant maintained that she had the sole right to decide whether to be paid in USD or XAU.

By an application for pre-action discovery under O 24 r 6 of the Rules of Court, the Appellant thus sought to compel the Respondent to produce certain voice-logs of communications between herself and the Respondent. The application was dismissed at first instance. The Appellant’s appeal in the High Court was also dismissed. The Appellant then appealed to the Court of Appeal.


In the circumstances, the sole issue before the Court of Appeal was whether the Appellant’s application for pre-action discovery was “necessary”. Citing with approval the case of Kuah Kok Kim v Ernst & Young [1996] 3 SLR(R) 485, the Court noted that the purpose of pre-action discovery is to assist a claimant in deciding whether he or se has a viable claim against the defendant. However pre-action discovery may not be granted where a plaintiff is seeking to strengthen an existing cause of action. In such a situation, discovery should only be allowed after the action has commenced.

Accordingly, pre-action discovery would only be “necessary” where a potential plaintiff is unable to formally state a case as he does not yet know whether he has a viable claim, and requires pre-action discovery to fill the gaps in his knowledge. It is unnecessary where an individual is already in a position to commence proceedings.

The Court also stressed that when commencing an action, a plaintiff’s Statement of Claim need only contain facts and not evidence. It therefore follows that the function of pre-action discovery is to put an applicant in possession of sufficient facts to formulate a claim, as opposed to providing a claimant with evidence to assess the strength of his claim.

Applying the above to the facts, the Court found that the Appellant was already contemplating making claims against the Respondent for breach of contract and tortuous negligence, and had sufficient facts to formulate her case. Accordingly, since the Appellant already knew the basis for her intended causes of action, the discovery of the voice-logs was not “necessary” for her to institute her intended action. Allowing discovery of the voice-logs would only grant the Appellant the benefit of determining whether she was likely to succeed at trial. In the normal course, this is a benefit that the Appellant would only be entitled to in the discovery process after proceedings had commenced.

Further, the Court also highlighted that the communications recorded in the voice-log would be well within the realm of the Appellant’s knowledge. The situation must therefore be distinguished from cases where the claimant was not privy to the contents of the document sought.

Accordingly, the Appellant’s application was dismissed.