Clarifying the law on pre-action production in Singapore under the new Rules of Court: Gillingham James Ian v Fearless Legends Pte Ltd and others [2023] SGHCR 13

Order 11, rule 11 of the Rules of Court 2021 (“ROC 2021”), which provides for the production of documents and information before the commencement of proceedings or against a non-party, is the successor provision to the previous Order 24, rule 6 of the Rules of Court (Cap. 322, R 5, 2014 Rev. Ed.) (“ROC 2014”).

In Gillingham James Ian v Fearless Legends Pte Ltd and others [2023] SGHCR 13, the High Court held that a party, who has basis for believing that he has a viable cause of action, may apply to obtain documents and/or information to cover “critical gaps” in his/her intended claim.

Key Takeaways:

1. The pre-action production regime continues to exist under Order 11, rule 11 of the ROC 2021, allowing a party who has a basis for believing that he has a viable cause of action to obtain documents and/or information to cover “critical gaps” in the intended claim.
2. The purpose of pre-action production remains the same (i.e. to save judicial costs and time and to ensure the efficient management of court processes).
3. The scope of pre-action production under Order 11, rule 11 of the ROC 2021 is wide and enables parties to identify possible parties to any proceedings, “trace” a party’s property, or for “any lawful purpose”.
4. The threshold for obtaining pre-action production has been raised to that of “materiality”, which connotes a higher level of importance to the case at hand, as opposed to the previous standard of “necessity” under the previous Order 24, rule 6 of the ROC 2014. An applicant must demonstrate that the documents or information obtained is material to the determination of whether there is a cause of action that can sustain a viable claim.
5. An applicant would only have to pay the reasonable costs of the application and reasonable costs of the respondents in complying with the production orders.

Background

This application was commenced by Mr James Gillingham (the “Applicant”) to seek pre-action discovery against four respondents, Fearless Legends Pte Ltd (the “Company”), Mr Christopher David Mansfield, Mr Plaskocinski Thomas Andre, and Mr Liam Patrick Jones (collectively, the “Respondents”).

The Applicant had sought production of documents and information in support of two potential claims for: (1) minority oppression under Section 216 of the Companies Act 1967; and (2) a claim for the tort of lawful and/or unlawful conspiracy.

The Applicant’s case was that his alleged abrupt removal as CEO…