Pre-Trial Case Management: Bundle of Documents (Part 1)

A. Introduction

With the introduction of Order 34 of the Rules of Court 2012 (“ROC“), the progress of a case is no longer left in the hands of the litigants but with the Court in the driver’s seat. Order 34 rule 2(2) of the ROC provides for directions that the Court can make at a pre-trial case management, to ensure the just, expeditious and economical disposal of the proceedings.

Generally speaking, parties are required to file the bundle of pleadings, bundle of documents, agreed facts, issues to be tried, summary of case, list of witnesses and witness statements.

This pre-trial case management series will come in two parts. The series will cover pre-trial documents that are typically contentious. The first series will cover bundle of documents. The upcoming series will cover the agreed facts and issues to be tried.

B. Classification of Documents

Order 34 rule 2(2)(d) and Order 34 rule 2(2)(e) provide for the classification of bundle of documents. The documents can be classified into the following parts.

First, Part A. These are documents where the authenticity and contents are agreed between both parties. This means that parties agree to the truth of the contents. Once the documents are classified as Part A documents, parties can no longer ask any questions on these documents.

Second, Part B. These are documents where the authenticity is not disputed but the contents are disputed. This means that parties agree to the existence of the documents and that the documents are not fabricated. Only the contents of the documents remain in dispute. Once the documents are classified as Part B documents, there is no need to call the maker of the documents. Original documents need not be tendered. However, witnesses are still required to testify on the truth of these documents.

Third, Part C. These are the documents where the authenticity and the contents are disputed. This is where the very existence of the documents is disputed. As a rule of thumb, Part C documents are usually fake, forged or fictitious. Once the documents are classified as Part C documents, the maker of the document must be called as a witness and primary evidence of the document must be adduced in Court.

However, it must never be the case where parties classify the documents under Part C merely to make it difficult for the other side to rely on a document at trial. This was highlighted by Nantha Balan JCA in Damansara Realty (Pahang) Sdn Bhd v Om Cahaya Mineral Asia Bhd [2021] 5 MLJ 1:

"[152] Part C documents are documents which are disputed as to their authenticity, existence and contents. Thus, the original documents have to be produced and marked as ‘ID’ and later converted to exhibits. The process requires the maker to be called to establish the authenticity and contents of the documents. Part C documents are usually for documents which are of suspicious or dubious provenance. As a rule of thumb, Part C documents are for documents which are said to be fake, forged or fictitious. But in practice, it is not unusual for parties to insist on innocuous or benign documents being placed in Part C.

[153] The reasons for doing so may be spurious, strategic or tactical. It is also possible that the purpose of placing documents in Part C is just to make life difficult for the other side who intend to rely on those documents. Trial judges have an overriding duty to conduct active case management to ensure that documents in Part C are ‘genuinely disputed’. Trial judges should not passively allow parties to dictate that documents should be in Part C. Parties who insist on placing documents in Part C must therefore satisfy the judge that there is a valid and acceptable reason for doing so. The reason is obvious. It would be unjust to allow parties to impose an unfair burden on the other side by tactically insisting on documents being placed in Part C. To allow parties to indiscriminately insist on documents being placed in Part C would also be an unfair burden on the court and a waste of judicial time."

C. Other Rules

There are a few other rules in relation to the preparation of bundle of documents. These are provided under paragraphs f, g and h of Order 34 rule 2(2).

First, the documents must be arranged in a chronological fashion or in some logical order. The documents must also be paginated.

Second, parties must aim to avoid duplication of documents within the bundle of documents.

Third, the contents and format of each document must comply with the requirements laid down in any practice direction for the time being issued.