The court ruled that the absence of an unless order does not prevent the exercise of discretion to strike out claims for non-compliance with pre-trial directions, but such discretion must be judiciously applied, especially in first instances of non-compliance.

Choong Yeow Choy JC:

Introduction

[1] Modern case management techniques require courts to play an active role in overseeing the civil litigation process. A key aspect of this management involves issuing pre-trial case management directions to the parties involved. Adhering to these directions is crucial for ensuring that disputes are resolved justly, promptly, and cost-effectively.

[2] The current case concerns a party's failure to adhere to pre-trial case management directions issued by the trial court. This non- compliance raises the issue of whether the party should face the full consequences for the violation or if leniency should be considered.

[3] The appeal before this court pertains to the Appellant's appeal against the learned Sepang Sessions court Judge's decision to strike out its claim under O 34 r 2(3) of the Rules of 2012 for non- compliance with the pre-trial case management direction issued on 5 January, 2024 - to file its witness statements and list of witnesses by 26 March, 2024 - that is, non-compliance with O 34 rr 2(2)(l) and (m) of the Rules of 2012 .

The Principal Issues

[4] The primary issues for determination in this appeal are as follows:

(i) Whether there was non-compliance with the pre-trial case management directions when the learned Sessions court Judge dismissed the Appellant's claim under O 34 r 2(3) of the Rules of 2012 ?

(ii) Whether the absence of an unless order circumvent the learned Sessions court Judge's ability to exercise his discretion under O 34 r 2(3) of the Rules of 2012 ?

(iii) Whether the absence of an application for dismissal by the Respondent circumvent the learned Sessions court Judge's ability to exercise his discretion under O 34 r 2(3) of the Rules of 2012 ?; and

(iv) Whether it was appropriate for the learned Sessions court Judge to exercise his discretion under O 34 r 2(3) of the Rules of 2012 to dismiss the Appellant's claim based on the circumstances in that case?

Background Facts

[5] On 23 September 2022, the Appellant filed a claim against the Respondent in the Shah Alam Sessions court, alleging that the Respondent's excavation works had damaged the Appellant's cable.

[6] Post-pleadings, both parties have filed the following documents:

(i) Summary of the Plaintiff's Case (28 February 2023);

(ii) Bundle of Pleadings (28 February 2023);

(iii) Statement of Agreed Facts (28 February 2023);

(iv) Common Bundle of Documents (28 February 2023);

(v) Summary of the Defendant's case (7 March 2023); and

(vi) Defendant's List of Witnesses (7 March 2023).

[7] Fast forward to 3 October, 2023, the Shah Alam Sessions court transferred the suit to the Sepang Sessions court; the relevant order was issued on 28 November 2023.

[8] On 5 January, 2024, during the case management session via e- Review, the Sepang Sessions court directed the Appellant to file its witness statements and list of witnesses and the Respondent to file the Respondent's witness statements - 'ON OR BEFORE' 26 March, 2024.

[9] However, on 26 March 2024, although the Respondent had filed its witness statements, the Appellant did not file its witness statements and list of witnesses. The Appellants, at 8:55 a.m., sought an extension of time from the Sepang Sessions court via e-Review. The Appellant explained that the reason for the non-compliance with the pre-trial case management directions was because it had difficulty in contacting and locating a key witness who had retired. Further, on 9:41 a.m., the Appellant had requested the learned Sessions court Judge to proceed with fixing the trial dates first. The learned Sessions court Judge did not respond to both requests.

[10] Later the same day, at 6:04 p.m., the learned Sessions court Judge in the e-Review system made an Order under O 34 r 2(3) of the Rules of 2012 to strike out the Appellant's claim due to the latter's non-compliance with O 34 rr 2(2)(l) and (m) of the Rules of 2012 .

[11] The following are the learned Sessions court Judge's grounds of judgment:

(I) The Pla