In Coneff Corporation Sdn Bhd v Vivocom Enterprise (Originating Summons No. WA-24C(ARB)-26-06/2019) the Malaysian High Court, in the context of a piling dispute on a construction project, considered the test for an application to subpoena a witness to produce documents for the purpose of an arbitration and give evidence in arbitration proceedings. The Court considered the validity of the subpoenas by reference to the following three criteria:
- their relevance and materiality to the issues in the arbitration;
- the precision in which the documents were identified; and
- whether the subpoena was sought for a non-legitimate purpose or was oppressive (in other words, whether they were necessary for the fair disposal of the arbitration).
The Court stated [35-36]:
“I am satisfied that the adequacy of the capacity of the constructed bored piles is, amongst others, a principal issue in the arbitration proceedings… I am… further satisfied that the … raw data is not only relevant but material and cogent in justification of the PDA test results. It is not a fishing for evidence expedition. Beyond this, it is not the purview of this Court but that of the arbitrator to analyse the cogency or effect of all the evidence including the PDA raw data to arrive at the ultimate determination of whether the bores piles as constructed are adequate. In my opinion, it is only fair and just that all relevant evidence must be made available before the arbitrator, particularly since the evidence has been specifically identified and sought by the parties. It does not matter if the PDA raw data would be used for cross examination of GSB or has the effect of shifting the burden of proof as so contended by the Applicant. … I am also convinced that the Plaintiff’s request for the raw data was not made for a non legitimate purpose because I find that it was made merely to advance its case in the adversarial arbitration proceedings. There is no oppression caused to the Applicant or GSB as I could not detect how they would tangibly be victimized or prejudiced in and/or by the arbitration proceedings…”
See the review of this case by Herbert Smith Freehills