A claim should not be struck out unless it is plainly unsustainable; the balance of justice favors allowing the plaintiff to prove his case at trial.

JUDGMENT

(Striking Out)

Kenneth St James JC:

Prelusion

[1] The 2nd and 3rd Defendants (D2D3) apply to strike out the Plaintiff's (P) claim against them under all four limbs of O 18 r 19(1) of the Rules Of 2012, under:

(1) limb (a): that the claim discloses no reasonable cause of action;

(2) limb (b): that the claim is scandalous, frivolous or vexatious;

(3) limb (c): that the claim may prejudice, embarrass or delay the fair trial of this suit;

(4) limb (d): that the claim is an abuse of the process of the Court.

The Law On Striking Out

[2] My starting point is first to remind myself of the principles that I must heed under the procedural law of striking out of pleadings.

[3] It is well established that so long as P's pleadings disclose a reasonable cause of action, the suit should proceed to trial-(1) Bandar Builders Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd, [1993] 3 MLJ 36 (SC); (2) Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor; [2016] 3 MLJ 1; [2016] 3 CLJ 1; [2016] 2 AMR 795 (FC).

[4] A review of the law on striking out is found in Tan Wei Hong (a minor suing through guardian ad litem and next friend Chuang Yin E) & Ors v. Malaysian Airlines Berhad; [2019] MLJ 59, [2018] 9 CLJ 425; [2018] AMR 529 (FC).

[5] In Tan Wei Hong (supra), the Federal Court, through the written judgment of Justice Ramly Ali FCJ, sets out as follows:

[17] The tests for a striking out application under O 18 r 19 of the ROC, as adopted by the Supreme Court in Bandar Builder are, inter alia, as follows: [2018] MLRAU 418, [2019] 1 MLJ 592 at 68; [2019] 1 AMR 685 (SC)

(a) it is only in plain and obvious cases that recourse should be had to the summary process under the rule;

(b) this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable;

(c) it cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence;

(e) the Court must be satisfied that there is no reasonable cause of action or that the claims arefrivolous or vexatious or that the defences raised are not arguable.

[19] The basic test for striking out as laid down by the Supreme Court in Bandar Builder is that the claim on the face of it must be 'obviously unsustainable'. The stress is not only on the word 'unsustainable' but also on the word 'obviously', ie, the degree of unsustainability must appear on the face of the statement of claim without having to go into a lengthy and mature consideration in detail. If one has to go into a lengthy detailed argument and mature consideration of the issues of law and/or fact, then the matter is not appropriate to be struck out summarily. It must be determined at the trial.

[20] The established rule on this point is that the Court should not examine the evidence in summary proceedings in such a way as to amount to conducting a trial on the conflicting affidavit evidence. As rightly said by Lord Diplock in the House of Lords case of American Cyanamid Co v. Ethicon Ltd [1975] AC 396 at p 407:

... The Court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.

It is no part of the Court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial...

This passage was cited with approval by the Privy Council in the Malaysian case of Eng Mee Yong & Ors v. Letchumanan, [1979] 2 MLJ 212.

[64] We are also of the view that in dealing with an application for striking out, the Court must exercise great care and caution, bearing in mind that the Court must not drive away any litigant however weak his case may be from the seat of justice (see: Lee Nyan