Raja Azlan Shah J:

This is an application by the defendants by way of summons in chambers for an order to strike out the plaintiffs' statement of claim under O. 25 r. 4 of the Rules of the Supreme Court on the ground that it discloses no reasonable cause of action or is frivolous and vexatious and an abuse of the process of the Court.

The points for determination are these. Firstly, when a plaintiff who is seeking by action to recover damages for personal injuries in respect of a road accident relies upon an acknowledgment of liability by the insurance company, does that acknowledgment constitute in itself a cause of action which is different from that which gave rise to the original claim? Secondly, should such a plaintiff plead the acknowledgment in his statement of claim or should he wait until the defendant pleads limitation and then deliver a reply setting up the plea of acknowledgment?

These points arise for decision in the following circumstances. The first and second plaintiffs as administrator and co-administratrix of the estates of two deceased persons and as next friends to four infants brought an action for damages for the benefit of the deceaseds' estates under the provisions of s. 7 of the Civil Law Ordinance, 1956 and also on behalf of the dependants who have suffered damages caused by the death of the two deceased persons. They filed their writ on 6 October 1965. The defendants are the administrators of the estate of Loke Hon Choong (deceased) who the plaintiffs alleged was responsible for the accident which occurred on 2 February 1963.

Appearance was duly entered and in p. 13 of the statement of defence they con-tended that the plaintiff's' claim was barred and was not maintainable by virtue of s. 8(3) of the Civil Law Ordinance, 1956.

A reply was subsequently filed. The plaintiffs joined issue with the defendants on their defence and in further answer to p. 13 of the said defence they pleaded in p. 2 of the reply that the defendant could not rely on s. 8(3) of the Civil Law Ordinance, 1956, as the China Insurance Co. Ltd. of Kuala Lumpur, Malaya, whose policy covered the deceased Loke Hon Choong as driver, had admitted liability and reached an agreement with the plaintiffs' representative as regards the quantum of damages.

In support of the present application, Mr. R Talalla, an advocate and solicitor of the High Court, put in an affidavit dated 15 November 1965 in which he deposed that letters of administration of the estate of Loke Hon Choong (deceased) were granted to the defendants on 21 May 1963 and that the grant was extracted on 6 June 1963. In answer to p. 2 of the reply he stated that to the best of his knowledge, information and belief the China Insurance Co. Ltd. had neither admitted liability nor reached any agreement with the plaintiffs' representative or any other person as regards the plaintiffs' claim for damages.

On 7 December 1965 Enche Abdullah bin Masood the managing clerk of Messrs Harbans Singh and Kamil, advocates and solicitors, who are acting for the plaintiffs, filed an affidavit in reply. He deposed that on 16 October 1963 he interviewed one Liew Fook Thin, the representative of the China Insurance Co. Ltd at his Kuala Lumpur office. It was said that the insurance company had admitted liability and settled the matter, but they had not made payment in spite of several reminders.

With regard to the first point, the defendants contended that where the plaintiffs are seeking to recover damages by action for personal injuries in respect of a road accident and rely upon an acknowledgment of liability by the insurance company, such acknowledgment constitutes in itself a cause of action which is different from that which gave rise to the original claim. I desire to make it plain that I am not here expressing any concluded view whether there is such an acknowledgment or not. I am deciding this case on the assumption that there is such an admission of liability. In my judg