Only final judgments or orders are appealable; interlocutory decisions that do not dispose of rights are not appealable under the Court of Judicature Act.

Background

[1] The parties will be referred to as they were at the Sessions Court for ease of reference, as there were 2 notices of appeal filed separately to the High Court by the Plaintiff and Defendants against the whole decision of the Sessions Court in Taiping on 9 March 2022 that had allowed the Plaintiff's claim but apportioned liability at 80% to the Plaintiff and 20% to the Defendants. Appeal No AB-12BNCvC-4-03/2022 was filed by the Plaintiff on 17 March 2022 whereas Appeal No AB-12BNCvC-6-03/2022 was filed by the Defendants on 23 March 2022. By a Court order dated 7 February 2023 the 2 appeals were ordered to be heard together. The hearing of the appeals was fixed on 27 April 2023.

[2] The Plaintiffs solicitor then filed a letter dated 21 March 2023 in respect of Appeal No AB-12BNCvC-6-03/2022 giving notice of a Preliminary Objection (PO) to the Defendants' solicitor pursuant to r 11.04 of the Bar Council Rulings for its failure to adhere to O 55 r 4(4) of the Rules of Court 2012 ( ROC ) when it did not serve a copy of the Draft Index of the Record of Appeal upon the Plaintiff's solicitor. There was no application for extension of time to serve the Draft Index. At the hearing of the PO on 27 April 2023, among the complaints were that the Defendants failed to include a Hospital Taiping A&E report and an OKU Card of the Plaintiff (marked as an exhibit), but had included a witness statement of a person who was not called to testify in Court.

[3] Meanwhile, the Defendant's solicitor filed a letter dated 3 April 2023 of its intention to raise a PO on the following issues:

i. failure to adhere to O 55 r 4 of the ROC . Affidavits and exhibits in relation to interlocutory application should not be included as part of the records of appeal;

ii. appeal on the decision of the interlocutory application filed at Sessions Court under encls 48 and 115 were out of time under O 55 r 5 of the ROC ; and

iii. fresh evidence inadmissible on appeal under O 55 r 7 of the ROC . Evidence not marked as Exhibit can neither be included in the Record of Appeal nor tendered in Court.

Hearing On Preliminary Objections

[4] During the hearing of the PO on 27 April 2023, the Court heard oral submissions by the parties and referred to the written submissions filed earlier. In response to the Plaintiffs PO, the Defendants' solicitor submitted that they merely overlooked to serve the Draft Index but had served the Records of Appeal within time and that there was no injustice caused. It was also submitted that the PO did not mention anything about documents being included or excluded in the Record of Appeal but only on technicality of non-compliance with O 55 r 4(4). The Defendants' solicitor stated that if they were informed about the Record of Appeal earlier, they would have withdrawn the filed records and rectified the issue(s) immediately.

[5] In respect of the Defendants' PO, briefly, encl 48 was an application at the Sessions Court to amend the Statement of Claim to include medical costs, therapy costs and medical equipment recommended by a doctor. Enclosure 115 was an application by the Plaintiff to include in the bundle of documents a CD which showed the Plaintiffs condition after the accident as well as the affidavits and submissions filed in respect of the application. The Defendants' submitted that the Plaintiff filed a Notice of Appeal pursuant to the decision of the Sessions Court to dismiss encl 48 and then withdrew the notice; but in this appeal they did not indicate they would be appealing on that decision. Meanwhile encl 115 sought to introduce a CD and a witness at that stage of trial, which they would not