Importance of Pre-Litigation Due Diligence | Private Investigation | How to Avoid Paper Judgment

Private investigations may be costly. But commencing legal proceedings just to end up with mere paper judgment is frustrating, both for the litigant and his/her solicitor.

Before deciding to sue somebody, it is best if the litigant already has information of the defendant's properties, bank accounts etc. But this is not always the case.

Private investigators are well-equipped to find out such information. With these information, the litigant can decide better whether or not it is viable to sue a person, in terms of costs and chances of recovery.

But information may not always be legally obtained through private investigation. It is clear, however, that illegally obtained evidence is admissible in Malaysia so long as it is evidence of a relevant fact. Except for evidence of admissions and confessions, and generally evidence obtained from an accused after the commission of the offence, the judge has no discretion to refuse to admit evidence of relevant facts on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. (Dato' Seri Anwar bin Ibrahim v Public Prosecutor and another appeal [2015] 2 MLJ 293; Hanafi bin Mat Hassan v Public Prosecutor [2006] 4 MLJ 134)

Sometimes, the defendant may have already dissipated his assets in order to frustrate the plaintiff's claim. The defendant may have either transferred his assets out of the jurisdiction or to his spouse, for instance. Private investigators may assist with tracing of those assets. Whereas solicitors may assist with obtaining a court order to reverse a fraudulent transfer of such assets.

If the defendant has not or is about to dissipate his assets, there are ways to prevent this by way of an injunction or attachment of his assets pending the outcome of the litigation.