Getting Documents From a Non-Party During Company Litigation in Singapore

If your company is already in a court case in Singapore and the documents you need are held by someone who is not a party, such as a bank, an outside accountant, a logistics provider or a former employee’s new employer, you can ask the court to order that person to produce them. The main route is Order 11 rule 11 of the Rules of Court 2021, which lets the court order a non-party to produce documents and information in the interests of justice. The non-party is entitled to its reasonable costs, the court will not order anything that cannot be compelled in law, and the application normally has to fit into the court’s case management timetable.

This guide is for directors and business owners whose company is a claimant or defendant in an existing Singapore court action and who need records held by an outsider.

Who counts as a “non-party”, and why the usual production rules do not reach them

A non-party is anyone who is not a claimant or defendant in the action. The Rules of Court 2021 (the “ROC 2021”) define it as any person who is not a party in the action.

Most document production in a Singapore lawsuit happens between the parties. Each side exchanges the documents it relies on and the documents it knows are adverse to its case, and a party can ask the court to order the other side to produce specific documents. We explain that process in our guide to production of documents between parties under Order 11.

Those obligations bind only the parties, and only for documents in their “possession or control”. In company disputes the decisive records often sit with outsiders, for example:

• the bank that processed a disputed payment;
• the external accountant or auditor who prepared the management accounts or year-end working papers;
• the logistics company holding proof-of-delivery records;
• a former employee’s new employer, where confidential files are said to have followed the employee;
• an IT vendor holding system logs or archived mailboxes.

For these people, you need a court order directed at them.

What does Order 11 rule 11 actually allow?

Order 11 rule 11(1) of the ROC 2021 allows the court to order the production of documents and information before proceedings start or against a non-party. The stated purposes are to identify possible parties, to enable a party to trace its property, or for any other lawful purpose, in the interests of justice.

Two further limbs of the rule matter in practice:

• Rule 11(2): the court must not order a document to be produced if its production cannot be compelled in law. Privilege and statutory secrecy rules still apply.
• Rule 11(3): a non-party is entitled to all reasonable costs arising out of the application.

The same rule also covers applications made before any claim is filed. Those raise different questions, which we cover separately in our guides on pre-action discovery and Norwich Pharmacal orders. This article deals only with the situation where your action is already running and the pleadings set out what is in dispute.

Separately, Order 11 rule 4 allows the court, of its own accord and at any time, to order any party or non-party to produce a copy of a document in its possession or control. That is the court’s own power. A party who wants documents from an outsider should not rely on the court acting by itself and should make a proper application. You can read the full text of Order 11 in the Rules of Court 2021 on Singapore Statutes Online, and the Singapore Courts publish a plain-language guide to production of documents.

How is this different from an order to produce documents at trial?

Under Order 15 rule 4, a party can ask the Registrar to issue an order to produce documents (Form 29) to a witness, served personally in Singapore at least 28 days before the hearing. That is a trial tool. An application under Order 11 rule 11 gets documents earlier, while you can still use them to prepare evidence, assess the claim and consider settlement.

What will the court want to see before ordering a non-party to produce?

The rule turns on “the interests of justice”. Order 11 rule 1 also tells the court to apply the Ideals of the ROC 2021 (including fair access to justice, expeditious proceedings and cost-effective work proportionate to the case) together with two principles: a claimant must proceed on the strength of its own case and not the weakness of the defendant’s, and a person who goes to court does not give up its right to privacy and confidentiality in its documents.

Against that background, a well-prepared application usually shows the following:

A bank, accountant or courier has no stake in your dispute, so the narrower your request, the stronger it looks.

When in the case should the application be made?

Timing is where many companies go wrong. The ROC 2021 is built around case conferences, and Order 9 rule 9 says that, as far as possible, each party should make a single application pending trial dealing with all matters needed for the case to proceed. Production of documents and “independent witness and interested non-parties” are both listed among the matters that single application covers.

Order 9 rule 9(7) then bars other applications unless directed at a case conference or approved by the court, subject to a short list of exceptions (such as injunctions, summary judgment and default judgment). A non-party production application is not on that exception list. In practice this means:

1. Raise it early. Tell the court at the case conference that you expect to need non-party documents and from whom.
2. Fold it into your single application where the timetable allows. The court will usually direct the applicant to file the application and supporting affidavit within 21 days of the case conference, with the reply 21 days after that.
3. If the need arises later, for example after affidavits reveal a third party’s role, ask for the court’s approval by letter explaining what you want and why it is needed at that stage (Order 9 rule 9(8)).
4. Avoid the final weeks. No application may be taken out from 14 days before trial until the merits are decided, except in a special case with the trial Judge’s approval.

If the court orders affidavits of evidence-in-chief to be exchanged first, the single application generally comes after them.

How the application is made: step by step

1. Write to the non-party first. Some will release documents voluntarily or with the relevant person’s consent; banks and professional firms usually ask for a court order. Keep the correspondence to show the court you tried a cheaper route.
2. Check whether the opposing party has the documents. If they are within the other side’s possession or control, a request against that party is usually the more appropriate step.
3. Draft a narrow schedule of documents. List each category, the period, and the pleaded issue it goes to.
4. Prepare the supporting affidavit. It explains the dispute, why each category is relevant and necessary, why the non-party is the right source, and the steps already taken.
5. File the summons through eLitigation. Under the ROC 2021 a “summons” is an application in an action that has to be served on other parties or non-parties. The non-party must be served so that it can respond.
6. Offer to meet the non-party’s reasonable costs. Rule 11(3) gives it that entitlement. Saying so upfront often turns a likely objection into a consent or a neutral position.
7. Attend the hearing and be ready to narrow the request if the court or the non-party raises burden or confidentiality concerns.
8. Serve the order and follow up. Agree the format of production (electronic copies are common) and a delivery date, and check that what arrives matches the order.

A company generally has to act through a solicitor in court proceedings under Order 4 rule 3 of the ROC 2021, unless the court gives permission for an officer to act. Most companies therefore make these applications through their lawyers.

Checklist of documents to prepare

• The current pleadings and any case conference directions
• Correspondence asking the non-party for the documents, and its reply
• Correspondence with the opposing party about whether it holds the documents
• A schedule of requested categories with date ranges and identifiers
• Evidence of the non-party’s role (invoices, contracts, delivery notes, employment records)
• A costs undertaking or proposal for the non-party’s reasonable costs

What happens to the non-party’s costs and confidential information?

Costs. Under rule 11(3), the non-party is entitled to all reasonable costs arising out of the application. That can include the cost of searching archives, retrieving records and its legal costs of responding. The applicant usually bears these at least initially. Whether they can later be recovered from the opposing party as part of the costs of the action is for the court to decide.

Confidentiality. Order 11 rule 9 states that a confidential document does not lose its confidentiality simply because it is disclosed, and confidentiality alone is not a ground for a party to refuse production under a court order. Order 11 rule 10 adds that documents produced under Order 11 must not be relied on in other proceedings without the producing party’s consent or the court’s approval. Where a non-party holds commercially sensitive material, such as a competitor’s client list, parties often propose safeguards like redacting unrelated information or limiting who may see it.

Bank records. Banks are subject to customer secrecy under section 47 of the Banking Act 1970, and may disclose customer information only through the gateways in its Third Schedule. One of those gateways is compliance with an order of the Supreme Court under Part 4 of the Evidence Act 1893. Because Order 11 rule 11(2) prevents the court from ordering what cannot be compelled in law, applications for bank records need careful framing. Where the aim is to follow misappropriated money, see our guide to Bankers Trust orders for tracing company funds.

Example: delivery records held by a logistics provider

Example (hypothetical): A Singapore trading company sues a customer for S$180,000 in unpaid invoices. The customer’s defence says half the goods never arrived. The trading company used a third-party logistics provider, which holds the scanned proof-of-delivery records, but the trading company’s own copies were lost in a system migration.

The provider says it needs a court order. In the single application, they ask for proof-of-delivery records for 14 named delivery orders over a four-month period, with GPS timestamps, and offer to pay the provider’s reasonable retrieval and legal costs. Because the request is tied to a specific pleaded defence, limited in scope and the provider’s costs are covered, it stands a better chance than a broad request for “all records relating to the customer”. Whether the court grants the order still depends on its assessment of the case.

What if your company is the non-party being asked?

If your company is served with such an application, do not ignore it. Note the hearing date, check the request against your actual records, estimate the cost of compliance, and look for privilege or confidentiality obligations to customers. Ask the applicant to narrow the request and to confirm it will pay your reasonable costs under rule 11(3). Preserve the documents in the meantime.

Frequently asked questions

Is this the same as “discovery against a third party” under the old rules?

It replaces it. Before 1 April 2022, non-party discovery was governed by Order 24 rule 6 of the Rules of Court (2014 revision). For actions started on or after 1 April 2022, Order 11 rule 11 of the ROC 2021 applies, within the single application pending trial framework.

Can I ask the non-party questions as well as for documents?

Rule 11(1) refers to production of “documents and information”, so a request can extend to information. The court will still expect it to be specific, relevant and proportionate.

Who pays if the order is granted?

The non-party is entitled to its reasonable costs, usually paid by the applicant first. How those costs are finally treated between the parties is for the court.

Can a former employee’s new employer be ordered to hand over our files?

Potentially, if the files are relevant to a pleaded issue in your existing claim and the request is targeted. Where you are trying to find out who received the information before suing, the pre-action routes are more relevant.

Need help with getting documents from a non-party in your company’s lawsuit?

If your company, or you as a director or shareholder, is dealing with a court case where key documents are held by a bank, accountant, logistics provider or another outsider, contact the Raffles Corporate Services team at [email protected] or on WhatsApp at +65 8501 7133 or +65 9018 0072. We will help you understand the documents and deadlines. Where your matter needs a lawyer, we will refer you to a firm on our panel of Singapore law firms that regularly handles commercial litigation and document production applications. Raffles Corporate Services is a corporate services provider, not a law firm, and this article is general information, not legal advice.

The Raffles Corporate Services Editorial Team, Raffles Corporate Services