A party must provide a cogent explanation for delays in amending pleadings; failure to do so may result in refusal of the amendment application.

JUDGMENT

Christopher Chin Soo Yin JC:

Background

[1] The Plaintiffs filed an action against the Defendant alleging defamation. This suit has proceeded up to the Federal Court on to decide if a State Authority can sue for defamation and which the Federal Court ruled in the affirmative.

[2] The Federal Court further ruled that this matter be reverted to the High Court to determine if the impugned words were indeed defamatory of the Plaintiffs and if so to assess the damages arising therefrom if necessary.

[3] In the meantime the Defendant had sought to amend its statement of defence. The key issue here is that the application to amend was made about seven years from the close of pleadings.

The Application To Be Decided

[4] The Defendant under encl 52 filed a Notice of Application dated 4 March 2020, seeking to amend his defence dated 26 April 2013.

[5] The grounds of the Defendant's application in encl 52 are as follows:

(1) The proposed amendments are necessary for the purpose of determining the real question in controversy between the parties in the action;

(2) That the proposed amendments herein are made bona fide;

(3) The amendments will cause no prejudice or injustice to the Plaintiff;

(4) Other grounds are set out in the Affidavit of Chong Cheng Jen affirmed on 4th day of March, 2020 and filed herein.

History of Pleadings

[6] The Defendant filed his Defence on the 26 April 2013, some seven (7) years prior to the application to amend in encl 52 (4 March 2020). Pleadings had closed following the Plaintiff's filing of their Reply to Defence on the 10 May 2013 (encl 6). In fairness it must also be noted that the Plaintiffs did amend their statement of claim but only a one liner in relation to the manner of the description of the appendices to the Statement of Claim.

Legal Considerations

[7] The approach this Court takes is generally to allow parties to amend their pleadings as in our adversarial system, parties should be allowed to present their case in the manner they feel would best prove their pleaded case.

[8] But like everything else, there are limits to amendments so as to ensure the application to amend does not cause injustice, disadvantage or prejudice to the other party nor is an abuse of Court process, or, is intended to unfairly delay the inevitable outcome of the proceedings. Thankfully, there are clear steps established over time to assist the Court to ascertain if the application to amend should or should not be allowed.

[9] The first step is to ensure that this application to amend complies with Rules of 2012 ("RoC") in particular O 20 of the ROC which lays down in detail the circumstances where pleadings can be amended with or without leave.

[10] The second step this Court will take in deciding whether to allow the application to amend is to ensure the proposed amendment meets the tests laid down in Yamaha Motor Co, Ltd v. Yamaha Malaysia Sdn Bhd , 1983 MarsdenLR 38 ; [1983] CLJ (Rep) 428, where the Federal Court succinctly stated:

"The Courts should lean towards granting applications for amendments even when a new cause of action or line of defence is raised, provided it is based on the same facts or arose out of the same transaction subject, however, to an award of costs to the other party for the injustice caused by the amendments"

[11] The Federal Court recognises the conditions set out in Yamaha Motor's case [Supra] which are:

"Three basic questions should be considered to determine whether injustice would or would not result,

(1) whether the application is bona fide;

(2) whether prejudice caused to the other side can be compensated by costs and

(3) whether the amendments would not in effect turn the suit from one character into a suit from one character into a suit of another and inconsistent character.

[12] The third step, which comes into play if the application to amend is made late relative to the date the pleading was filed is to read Yamaha Motor together with the oft quoted case of Hong Leong Finance Berhad v. Low Thiam