An unless order mandates strict compliance; failure to comply without justifiable excuse results in dismissal of claims.

RULING

[Encls. 192 & 195]

This ruling is necessitated by an unless order which I made on the 19.5.2010 with regards to the further conduct of the trial of the action which was part-heard before me. The unless order I felt compelled to make because the plaintiff's handwriting expert's supplementary report was slow in coming and by a letter dated 7.5.2010 (Encl. 184) the plaintiff's counsel, Mr. Wong Ho Leng wrote in for an adjournment of the trial fixed on 19 & 20.5.2010 for two reasons:

(i) Mr. Wong Ho Leong was standing as a candidate in the Sibu by-election scheduled on 16.5.2010 (polling day).

(ii) The plaintiff's handwriting expert was unable to attend on the said two dates.

Although I agreed to adjourn the hearing, not so much on the first ground but more on the second ground, I decided that I have to take a tough stand on the preparation of the handwriting expert report. So, I made the unless order which was that the said report must be filed and served within 3 weeks from 19.5.2010 (ie, by 9.6.2010 ) failing which the plaintiff's case will be dismissed.

The report was not served within that time period. Thus, by a Summons in Chambers dated 23.6.2010 the defendants have applied to strike out the plaintiffs claim. The plaintiff has also put in a Summons in Chambers dated 5.7.2010 for extension of time to file their said report or in the alternative the plaintiff's 2^nd Supplementary Report dated 27.5.2010 which was already filed in court on 23.6.2010 and served on the defendants' counsel on 28.6.2010 be accepted and used in this action.

The legal effect of an unless order

An unless order, being a peremptory order of the court, must be complied with and its breach should automatically attract the penalty prescribed in the order but of course, before that happens the court must first ensure that the terms of the order was clearly spelt out and there was a complete failure of complying with it. This much was held by the English court of Appeal in Reiss v. Woolf [1952] 2 All ER 112.

I am pretty sure myself that the terms of the unless order which I made in this case had satisfied the requirements set above. However, I had to reconsider the strict enforcement of an unless order stipulated above against the latter decisions of the English Courts which have been considered and applied in the court of Appeal's case of Md Amin Md Yusof & Anor v. Cityvilla Sdn Bhd, 2004 MarsdenLR 1971 and in the High court's case of Folin & Brothers Sdn Bhd v. Wong Foh Ling & Ors (No 2); 2001 MarsdenLR 1740 . These later cases held that the court must be satisfied before imposing the penalty prescribed in the unless order that the breach of it was not intentional and contumelious. YA Datuk Abdul Malik Ishak J (as His Lordship then was) in Folin's case (supra) had quoted excerpts from the judgment of Ward LJ in Hytec Information Systems Ltd v. Coventry City Council [1997] 1 WLR 1666 (at page 1674) and Sir Nicholas Browne-Wilkinson VC in In re Jokai Tea Holdings Ltd (Note) [1992] 1 WLR 1196 (at page 1203) where this principle was stated.

Although both quotations are relevant to this judgment, I would like to reproduce that of Sir Nicholas Browne-Wilkinson below.

"In my judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an 'unless' order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed."

Thus, in this case I must examine the reason given by the plaintiff for breaching the unless order.

Reason for the breach

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