The Riddick Rulebook: Read. Review. Resist.

Introduction

The tension between protecting a party’s right to confidentiality in litigation and upholding the principle of open justice has long occupied courts across the common law world. Nowhere is this tension more sharply felt than in the doctrine known as the Riddick principle, an implied undertaking that a party who receives documents through compelled discovery may not use those documents for any purpose beyond the proceedings in which they were disclosed.

The Court of Appeal decision in GM Aero Support Sdn Bhd & Anor v Genting Highlands Bhd & Ors [2026] MLJU 253 marks a significant moment in Malaysian legal development, signalling a decisive shift in how courts here should treat disclosed documents once they enter the public record of an open court.

Origins and Rationale of the Riddick Principle

The Riddick principle takes its name from the English Court of Appeal’s 1977 decision in Riddick v Thames Board Mills Ltd, where Lord Denning MR articulated the foundational rule: documents obtained through court-ordered discovery are produced under a form of legal compulsion, and that compulsion carries with it an implied promise, which is an undertaking to the court, that the receiving party will use those documents only for the purpose of the proceedings in which they were disclosed.

To permit otherwise, Lord Denning reasoned, would be to allow the machinery of justice to become an instrument of oppression, ultimately discouraging the very candour that full discovery demands.

The rationale rests on the balancing of two competing public interests:

1. on one side, the court’s interest in obtaining all relevant material to resolve disputes justly; and
2. on the other, the privacy and confidentiality interests of the party who was compelled to produce the documents in the first place.

This balance is not a permanent equilibrium. It shifts, as GM Aero Support demonstrated, when disclosed documents ceased to be confidential because they have been openly received, marked, tendered, and tested as evidence before a trial judge in proceedings to which the public had access.

Post-Riddick Complication: The Harman Divergence and Its Aftermath

The pivotal complication in this area of law arose from the 1983 House of Lords majority decision in Harman v Secretary of State for the Home Department, which held that the implied undertaking did not terminate even after disclosed documents had been read out in open court.

In Harman, a solicitor who allowed a journalist to inspect documents that had previously been read aloud during trial was nonetheless found guilty of contempt. The majority reasoned that the document having passed through open court did not transform it into freely usable material, since the third party had obtained access not from the court record but from the solicitor’s own files and for a collateral purpose.

The minority, led by Lord Scarman, took a fundamentally different view. If information becomes part of the public record of open court proceedings, it enters the public domain, and the duty of confidentiality, which justified the undertaking in the first place, logically dissolves with it. This minority position proved persuasive beyond England’s borders.

England itself legislated away the Harman majority position in 1987 through amendments to the Rules of the Supreme Court, eventually enshrining the “open court exception” in Rule 31.22 of the Civil Procedure Rules 1998. England, Australia, New Zealand, Canada, Hong Kong, and Singapore have each, whether by legislative reform or judicial development, adopted the same position: unless the court orders otherwise, the implied undertaking not-to-use ceases to operate once said documents are read or referred to in open court.

Malaysia Finds Its Position

Prior to GM Aero Support, the only substantive Malaysian authority on point was the High Court decision in Extreme System Sdn Bhd v Ho Hup Construction Company Bhd & Ors (No 4) [2011] 10 CLJ 186, where Mah Weng Kwai J (as His Lordship then was) accepted that the Riddick principle applies in Malaysia but found that it does not operate where the disclosed documents have become public documents within the meaning of Section 74 of the Evidence Act 1950. Based on this, so long as the document is filed and used in court, the Riddick principle would not operate. That decision also confirmed that the Riddick principle will not catch documents used for a bona fide and related purpose, reserving the implied undertaking only for uses that are truly ulterior.

 

In GM Aero Support, the Court of Appeal went further. The facts were tightly drawn:

1. Documents in Bundles B106 and B108 had been produced pursuant to court order and subpoena during the trial of Suit 13;
2. A witness statement addressing B106 was tendered and read in open court;
3. B108’s contents were put directly to the respondents’ witness during cross-examination over two trial days; and
4. Despite this, the High Court had held, following Harman (majority), that the implied undertaking continued to bind. The Court of Appeal disagreed.

 

The Riddick undertaking ends once documents are filed and used in open court

Invoking Section 3 of the Civil Law Act 1956, which requires Malaysian courts to apply English common law only so far as local circumstances permit and subject to such qualifications as local circumstances render necessary, the Court of Appeal held that Malaysian courts are not bound to follow a position that has been abandoned in its country of origin and rejected across the Commonwealth. The court preferred Lord Scarman’s minority reasoning in Harman and the approach subsequently taken in Singapore, Australia, New Zealand, and Canada. The conclusion was unequivocal: the implied undertaking arising from compelled disclosure terminates once the documents are filed as evidence and used in open court. Basically, once a document is filed in court, Riddick restrictions will not apply.

Importantly, the court did not leave the disclosing party without recourse. Where privacy concerns remain genuine, a party may apply for a protective or sealing order — as illustrated by the High Court’s approach in Kingtime International Ltd & Anor v Petrofac E&C Sdn Bhd [2020] 11 MLJ 141. In the absence of such an order, documents admitted into evidence in open proceedings must be treated as residing in the public domain.

The “Related Proceedings” Exception

The Court of Appeal’s reasoning did not stop at the open court exception. It also found that even if the Riddick principle had continued to apply, the use of Bundles B106 and B108 in the Temerloh Originating Summons and Temerloh Judicial Review proceedings would not have constituted a breach. Drawing on the Singapore Court of Appeal’s analytical framework in Ong Jane Rebecca v Lim Lie Hoa [2021] 2 SLR 584, the court distinguished between truly collateral use, which the Riddick principle is designed to prevent, and use in related proceedings that are logically and practically connected to the suit in which disclosure was ordered.

The Temerloh proceedings were filed specifically to challenge the alienation and issuance of the very same land titles whose legitimacy was already at issue in Suit 13. The same parties, the same underlying dispute over the Genting Main Access Road, and the very same documents that the respondents themselves intended to rely upon, all pointed to proceedings that were inextricably linked rather than independently opportunistic. To use those documents in that context, the court held, was neither alien nor collateral. It was essential.

Conclusion

Main Consideration is Open Justice: GM Aero Support is a significant contribution to Malaysian civil procedure jurisprudence. It confirms that the Riddick principle, while alive and applicable in Malaysia, is not the unyielding shield that Harman (majority) once suggested.

Open Justice Prevails Over Private Interests: Once compelled documents are admitted as evidence and deployed in open court, the law’s commitment to the principle of open justice, enshrined locally in Section 15 of the Courts of Judicature Act 1964, takes precedence over the residual privacy interest that originally justified the implied undertaking.

Private Interests – Can Be Protected By Taking Steps e.g. Court Orders: Parties who wish to preserve confidentiality after that point must act proactively by seeking appropriate court orders. The decision aligns Malaysia with the prevailing common law consensus and, in doing so, reinforces that justice is not merely done, it must be capable of being seen, understood and scrutinised.

This article was authored by Suaran Singh Sidhu (Partner) and Ashwinathan Selvanathan (Associate).

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Suaran Singh Sidhu | Head, Dispute Resolution & Arbitration