James Foong J:

The Plaintiff's Claim

The plaintiff's cause of action against the defendants is:

(a) malicious prosecution; and

(b) abuse of process.

He claims to have suffered damages as a result.

The Chronology Of Events

In order to understand this claim, it is necessary for me, at the outset, to set out the chronology of events.

The plaintiff is an advocate and solicitor practising under the name and style of M/s Vije & Company at the material time. He was a customer of the defendants, who are and were at the material time bankers. There were two banking accounts operated by the plaintiff: a personal account and an office account. In 1983, the plaintiff enjoyed a clean overdraft facility of up to RM20,000 on his personal account. However in 1989, the defendants insisted that he should apply for a secured loan to this account. Angered by this request, he forwarded to the defendants an application form for such a loan without much particulars, and his clerk as a guarantor. This was rejected by the defendants who then recalled the clean overdraft facility. A demand was then made by the defendants on the plaintiff for RM19,865.42. The plaintiff attempted to settle this by installments but the defendants claim that this was rejected though the plaintiff insists otherwise. For these harsh and arbitrary actions, the plaintiff complained to the defendants' higher-ups of the actions of one Kenneth Pillay, the defendants' manager managering the plaintiff's account at that time.

On 20 October 1989, the defendants filed a civil action in the magistrate court claiming the sum demanded together with interest and costs. When the summons was served, the plaintiff entered appearance. The plaintiff then contends that he was negotiating with the defendants' solicitors to settle this case; thus no defence was filed, but contrary to what was agreed, the defendants' solicitors obtained judgment in default of defence (default judgment) against him on 16 April 1990. The defendants deny this.

The plaintiff immediately applied to set aside this default judgment. While his application was pending, the plaintiff alleges that his counsel, who is also his brother, has entered into settlement with the defendants' solicitor, one Ms. Kuna. This was to pay up the sum of RM19,865.42 by six instalments commencing from 15 February 1991. According to the plaintiff this was agreed to by the defendants. However this again is denied by the defendants.

Though insisting that there was a settlement concluded, the plaintiff did not comply with the terms to pay within the purported agreed time. One year after the default judgment, the defendants sent to the plaintiff a letter of demand for a sum of RM25,554 which included interest and costs calculated to the date of the letter. Also inserted in this letter is a paragraph which advised that if no payment is received bankruptcy proceedings will commence.

Upon receipt of this letter on 29 April 1991, the plaintiff claims that he panicked; frightened and afraid of the impending bankruptcy proceedings which may affect his reputation. Despite such emotional reactions, the plaintiff only paid RM19,865.42 instead of the total sum so demanded in the said letter. This payment by way of a cheque was however returned to the plaintiff by the defendants' solicitors as being unacceptable.

In the meantime, the plaintiff's application to set aside the default judgment was dismissed by the magistrate on 12 March 1991. Against this, the plaintiff filed an appeal to the High Court.

On 17 May 1991, the defendants commenced bankruptcy proceedings against the plaintiff by securing a bankruptcy notice. Unable to serve the bankruptcy notice personally on the plaintiff, the defendants' solicitors on 29 May 1991 sent a letter of appointment to the plaintiff to serve this notice on the plaintiff personally, and if they fail to succeed, an application for substituted service by way of advertisement in seven named national newspa