INTERACTIVE DIGITAL FINANCE LIMITED & Anor v CREDIT SUISSE AG & Anor

Facts

Interactive Digital Finance Ltd and Mr Tiah Thee Kian sued Credit Suisse AG and Luckin Coffee Inc in Originating Claim No 225 of 2023 for investment losses they said were caused by the defendants' representations. Credit Suisse served a notice to produce in the form used under the old 2014 Rules, making 76 requests for documents said to be referred to in the statement of claim, and sought an extension of time for its defence. The claimants refused, saying there was no legal basis for the request.

At a case conference on 2 May 2023 the Assistant Registrar directed the claimants to produce any document referred to in the statement of claim that was subject to the claim against Credit Suisse, and extended time for the defence. The claimants produced documents for 23 requests, said documents for five were not in their possession, and refused the rest. They then appealed against the Assistant Registrar's order in Registrar's Appeal No 95 of 2023. Both parties also asked the judge to decide whether the records sought in requests #20, #28 and #58, which concerned how Credit Suisse had sent two analyst reports to the claimants, were documents referred to in the statement of claim.

Issues

1. Whether the court has power under the Rules of Court 2021 to order production of documents referred to in pleadings, outside the single application pending trial
2. Whether the threshold for appellate intervention in a procedural matter under O 18 r 10 was crossed
3. Whether the documents in requests #20, #28 and #58 were referred to in the statement of claim

Holding

The High Court dismissed the appeal, upholding the Assistant Registrar's production order. It also decided that the documents in requests #20, #28 and #58 were not referred to in the statement of claim, so Credit Suisse was not entitled to them at that stage. Each side was ordered to bear its own costs.

Reasoning

The notice to produce procedure under the 2014 Rules no longer exists, but the Assistant Registrar had not relied on it. General production under O 11 r 2 was not designed for specific requests, and Credit Suisse had made no application under O 11 r 3, which ordinarily belongs in the single application pending trial. However, O 11 r 4 lets the court order production of its own accord at any time, and documents referred to in pleadings deserve different treatment. Following SK Shipping, referring to a document in a pleading is itself a form of disclosure, so the other side should have the same advantage as if it had been set out in full, and a defendant may need it to plead its defence properly. Order 3 r 2(2), which allows the court to do what is necessary for justice where the Rules are silent, also supported the order, consistent with the Ideals of expeditious proceedings and fair and practical results. A written request suffices for such documents. The judge stressed that this did not let parties bypass the single application procedure generally.

In any event, the claimants had not shown that substantial injustice would result from the order, so appellate intervention was not justified under O 18 r 10.

On the three requests, a document is referred to if it is explicitly mentioned or directly alluded to, not if it is only inferred. The statement of claim merely pleaded that Credit Suisse provided or forwarded the reports, which described transactions rather than the communications themselves. Credit Suisse could still seek those records later under other disclosure rules.

From the judgment