JUDGMENT

Ravinthran Paramaguru JC:

[1] This is an appeal against the decision of the learned Sessions Court judge who dismissed the appellants' application to set aside a default interlocutory judgment in respect of liability in a personal injury case.

Preliminary Objection

[2] At the outset of the appeal, counsel for respondent said that the appeal was filed under O. 49 r. 2 instead of O. 49 r. 6 of the Subordinate Rules 1980 and should therefore be struck out. Order 49 r. 6 is applicable for appeals from non-trial matters in the lower Court. The instant appeal is against the decision of the Sessions Court judge to dismiss an application to set aside a judgment in default. Therefore counsel for respondent is right to submit that the appeal was wrongly filed under O. 49 r. 2 which is in respect of decisions after a trial. He cited some authorities to argue that the appeal should be struck out. The failure of the appellant to proceed under the correct rule in this appeal is, in my opinion, a matter of mere technical non-compliance which did not cause any miscarriage of justice. It also did not cause a lengthy delay or disruption to the appeal process. The delay in filing the Appeal Record was only two weeks. The Notice of Appeal was filed within time. All the relevant documents that are required under O. 49 r. 6 were properly included in the Record of Appeal in this case. The cases cited by counsel for respondent were decided before the insertion of O. 1A and O. 2 r. 3 to the Rules of the High 1980 . These rules provide that the Court should have regard to substantial justice rather than to technical non-compliance unless they cause a miscarriage of justice. It is to some extent a reaffirmation of the epithet that the rules of procedure should be the handmaiden and not the master (per Ismail Khan in Ee Kim Kin v. Collector of Land Revenue, Alor Gajah , [1967] 2 MLJ 89). I shall therefore dismiss this preliminary objection.

Background Facts Of Claim

[3] The brief facts of the claim as pleaded in the statement of claim of the three appellants are as follows. On 11 October 2004, the driver of a car bearing registration number QKT 7180 and his two passengers died during an accident along the Kuching - Sri Aman road at KM78.6. The 2nd respondent, an infant aged four years old, survived the accident and he sued through his grandfather and next friend. The 1st respondent is the administrator of the estate of the 2nd respondent's parents who succumbed to their injuries after the tragic accident. The 3rd respondent is the administrator of the estate of the other deceased passenger. The respondents pleaded in the statement of claim that the car driven by the father of the infant swerved and collided into an oncoming lorry because the appellants' car encroached into his path. The 1st appellant is the permitted driver of the said car whereas the 2nd appellant is the registered owner.

[4] The respondents filed the writ of summons and statement of claim on 9 March 2005. The summons was served on both appellants on 17 July 2005. Prior to the filing of the action, the respondents' counsel served a statutory notice under s. 96 of the Road Transport Act on the insurers of the appellants. The insurers confirmed the insurance coverage and replied that they were in the midst of negotiations with the third party's solicitors. The case was mentioned six times in open Court. At the earlier mention dates, the appellants were represented by solicitors who subsequently withdrew themselves. After service of notice of hearing for a fresh mention date, an interlocutory judgment with damages to be assessed was entered against the appellants in their absence on 26 December 2006. The judgment was served on the appellants on 2 May 2007. Notice was given to the appellants that the assessment hearing would take place on 14 September 2007. Neither the appellants nor the insurers took steps to set aside the judgment in default in respect of liability. The trial