Introduction

In a recent decision of the High Court in the case of L&S Cosmetics and Toiletries (M) Sdn Bhd V Prudential Clinic Care Sdn Bhd 2020 10 CLJ 206 (‘L&S Cosmetics’), the Court considered the issue of placement of documents in Part A instead of Part B.

The facts of this case is not material but more importantly was an application that was made by the Defendant during the course of a full trial to amend the Additional Common Bundle of Documents Part A, by removing certain documents that had been previously agreed by both parties to be classified under Part A to be re-classified under Part B.

It was the Defendant’s contention that the Plaintiff’s affidavits were mistakenly placed in Part A instead of Part B.

The said application on the change of placement of documents was made pursuant to Order 20 Rule 8 Rules of Court 2012 ,which provides that the Court may at any stage of a proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner as the Court may direct.

The application was further filed pursuant to O. 92 r. 4 of the Rules of Court 2012, the inherent powers as vested by the Court.

As is common knowledge documents in Part A is where the authenticity of the documents and the contents of the documents are not in dispute and there is no need to call the maker of the document to testify in Court. Part B is where the authenticity of the documents is not in dispute but the contents is disputed subject to the maker being called to testify at the trial.

Issue in Court

Was whether the change in placement of documents from Part A to Part B was permissible by the Court?

Decision

Khadijah Idris J
Held that it was permissible based on the following reasons:-

• The Court in reliance with the decision in Pfizer Ireland Pharmaceuticals v. Ranbaxy (Malaysia) Sdn Bhd [2013] 3 CLJ 61 said that it was not disputed by the Plaintiff that the additional common bundle of documents are Court documents.
• In this instant case, the circumstances and facts warrant this court to exercise its discretion due to the fact that in the considered opinion of this court, the mistake of the defendant's counsel is genuine.
• The defendant's counsel simply made a mistake in placing the plaintiff's affidavits in Part A. However it must be emphasised that this does not mean this court condones the defendant's mistake.
• It was not a tactical manoeuvre on the part of the Defendant to file the application. Under such circumstances, the defendant ought not to be penalised for the mistake of their counsel. In the interest of justice and to enable this court to deal with the real question in dispute between the parties, the application was allowed.

Conclusion

As was quoted in the case of R V Sussex, ex parte Mc Carthy 1924 1 KB 256, 1923 All ER Rep 233, which brought the common parlance the often quoted aphorism “ Not only must Justice be done, it must also be seen to be done”, the decision in L&S Cosmetics is indeed a very fair decision based on the peculiar factual matrix of that case.

It is not the intention of our Courts to deny the opportunity for the change in placement of documents, if it was mistakenly and/or inadvertently placed in Part A instead of Part B, when there will be no element of prejudice to the opposing party, but instead an opportunity to put to test the mistakenly placed documents that will now be in Part B, for the maker to be called to testify on the contents thereof at a full trial.

What may be foremost in the mind of the Learned Judge is whether there is any prejudice occasioned to the opposing party by the change of placement of documents from Part A to B and whether the objecting party can be compensated by costs awarded.

With the guiding principle of justice and fairness, the Courts may lend aid to litigants where possible, to ensure that their case is not jeopardised due to the mistake of their lawyers and hasty move in the deciding on the placement of documents without realizing the consequences of their actions.