Amendment applications post-trial require timely justification to prevent prejudice; otherwise, they may be denied.

Introduction

[1] On 21 March 2023 I had dismissed the Plaintiffs' application ("Enclosure 110") filed on 17 August 2022 to amend their Amended Statement of Claim filed about 7 years ago on 16 November 2015 ("Amendment Application").

[2] This Amendment Application is not your typical run-of-the-mill Amendment Application. This is because it is filed after the trial had long concluded and decision delivered, and only after the Plaintiffs' appeal to the Court of Appeal had been allowed. The next paragraph sets out the factual matrix.

[3] When the Amendment Application was filed on 17 August 2022 before me, the following events had already happened:

a) The trial had already started on 17 November 2016 and concluded on 9 June 2017 after 9 days of trial before the previous Judge YA Dato' Mohd Zaki bin Abdul Wahab. [See Penghakiman encl 98].

b) The Plaintiffs alleged they discovered on 18 April 2017 at the Registry of the High Court via a Court file search two Affidavits affirmed by the 1st Defendant and one Affidavit affirmed by the 3rd Defendant in Originating Summons No.: WA-31NCVC-818-07/2017 which the Plaintiffs assert are relevant for the claim at the trial.

c) On 2 June 2017 the Plaintiffs [towards the end of the trial] filed for leave to refer and adduce in the trial the two Affidavits affirmed by the 1st Defendant and one Affidavit affirmed by the 3rd Defendant in Originating Summons No.: WA-31NCVC-818-07/2017; and that the 1st Defendant be recalled for cross-examination in relation to the contents of his two Affidavits. [See Notice of Application encl 69].

d) Enclosure 69 was dismissed on 14 July 2017 by YA Dato' Mohd Zaki bin Abdul Wahab.

e) YA Dato' Mohd Zaki bin Abdul Wahab who heard the trial dismissed the Plaintiffs' suit on 24 October 2017. [See Penghakiman encl 98].

f) The Plaintiffs appealed to the Court of Appeal against both dismissals. The Court of Appeal on 14 March 2022 allowed the appeal by the Plaintiffs against the dismissal of their suit and also allowed the appeal against the dismissal of their encl 69.

g) The Court of Appeal further directed that the trial be reheard before a new judge limited to the 1st Defendant be recalled for cross-examination in relation to the contents of his two Affidavits. [See encl 113 Affidavit of Chew Pit King dated 15 September 2022 Exhibit CPK-1].

[4] I had dismissed the Amendment Application on the ground of inordinate delay, no explanation for the inordinate delay and prejudice to the Defendants which cannot be compensated by costs.

[5] The Plaintiffs have filed an appeal to the Court of Appeal against my decision.

[6] A question arises as to whether my decision is appealable and the appeal incompetent in limine and could not be laid before the Court of Appeal as it is clearly precluded by law in view of the Federal Court's decision in Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) v. Majlis Perubatan Malaysia & Anor, [2020] 2 MLJ 1 at Held 2 and [154].

[7] The Federal Court had held by a 4-1 majority that s 67(1) read with s 3 and s 68(1) of the CJA precluded a litigant's right of appeal against a High Court decision in an amendment application made in the course of trial.

[8] These are my Grounds of Judgment for my decision to dismiss the Amendment Application.

Background Facts And Court Proceedings

[9] I was assigned to rehear the trial on the limited basis as directed by the Court of Appeal.

[10] Trial is fixed to be reheard on a limited basis on 3rd and 4 April 2023.

[11] The Amendment Application was filed on 17 August 2022. It was