Under the Limitation Act, a minor's limitation period begins upon reaching the age of majority, allowing actions brought through a next friend to proceed despite the expiration of the statutory period.

Amarjeet Singh Serjit Singh JC:

Introduction

[1] On 11 January 2021, I dismissed the defendants' application dated 3 July 2020 to strike out the amended writ and amended statement of claim dated 24 June 2019 under O 18 r 19(1)(a) and/or (b) and/or (d) of the Rules of 2012 (enclosure 25). The application was premised on the sole ground that the action was barred by s 6(1)(a) of the Limitation Act 1953 ("the Act").

[2] The important issue that arose for consideration in this judgment is whether s 24(1) of the Act extends the limitation period stated in s 6(1)(a) in respect of a person under disability to the time such person ceases to be under the disability or dies.

[3] The starting point would be s 6(1)(a) which is couched in mandatory terms and provides as follows:

Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say -

(a) actions founded on a contract or on tort;

(b)...

[4] It is pertinent to note that the opening words of s 6(1) i.e. "save as hereinafter provided" clearly indicates that there are provisions that have been enacted further below in the Act that would affect the limitation period that has been provided. Such provision would be an exception to the period of limitation so provided.

[5] Unless such exceptions are applicable the period of limitation prescribed in s 6(1) must be strictly adhered to. Failure to do so will result in the action being struck out. The courts have no power to extend time beyond the statutory period provided in the Act ( Lee Lee Cheng v. Seow Peng Kwang , ). Usually, the defendant to an action founded on contract or on tort will apply to strike out the action if brought beyond the six years period prescribed in s 6(1)(a) under O 18 r 19(1)(b) or (d) but not under O 18 r 19(1)(a) of the Rules of 2012. The latest authority for this point is the Court of Appeal's decision in Chung Vui Kong v. K.K.I.P Sdn Bhd ; [2020] 10 CLJ 337 which referred to the following instructive passage by Donaldson LJ in Ronex Properties Ltd v. John Laing Construction Ltd & Ors (Clarke Nicholls & Marcell (A Firm), Third Parties) [1983] 1 QB 398:

What is thought to be clear that there is a defence under the Limitation Act, the defendant can either plead that defence and seek the trial of a preliminary issue or, in a very clear case, he can seek to strike out the claim on the ground that it is frivolous and vexatious and an abuse of the process of the Court and support his application with evidence. But in no circumstances can he seek to strike out on the ground that no cause of action is disclosed.

[6] The principle is that the statute of limitation merely bars a plaintiff's remedy and not his cause of action. Therefore, a defendant can only rely on the action being frivolous and vexatious, or an abuse of the process of the Court to strike out on the ground that the action is barred by limitation.

The Facts

[7] The facts leading to the application being filed are not in dispute. The action was filed on 24 June 2019 by the plaintiff, Imdadurrahman bin Hithayatullah, a minor aged 11 years 7 months (referred to as "the minor" or "he plaintiff") through his litigation representative or next friend. The litigation representative in the instant case is the plaintiff's father and the plaintiff's action is for damages founded on contract and on tort.

[8] The plaintiff was born on 3 November 2007 in Pearl Maternity Hospital at No 316, Jalan Dato' Ismail Hashim, Sungai Ara, Penang ("the hospital"). The date 3 November 2007 is the date of the alleged breach of contract, breach of statutory duty and negligence that is claimed to have caused damage or bodily injuries to the minor. The causes of action are the same for both defendants and are separately particularised. The 1st defendant is the hospital and the 2nd defendant was at the material time the resident consultant practicing as an Obstetrics & Gynaecology exp