A defendant can enter a late appearance without losing the right to defend; procedural irregularities can be remedied.

RK Nathan J:

Facts

The plaintiff commenced this action against the defendant claiming general damages amounting to RM1 million, interests, exemplary and additional damages, and costs for alleged negligence on the part of the defendant in issuing/executing/attempting to execute a warrant of arrest under a judgment debtor summons in respect of Kuala Lumpur Magistrate Court Case No. J76- 2840-1996 and also for defamation. The writ of summons with the statement of claim was filed on 22 December 1998. There is no affidavit of service filed by the plaintiff. However, the defendant has magnanimously admitted that the same was served on its firm of solicitors at their request on 9 February 1999. The defendant's memorandum of appearance was dated 19 February 1999 and was also filed on the same day. However, by a letter dated 19 February 1999 the defendant had in fact served the plaintiff with a copy of the memorandum of appearance on 18 February 1999. In other words a copy was served even before it was filed on 19 February 1999. Subsequently the defendant filed and served its defence on 3 March 1999.

In the meantime on 1 March 1999 the plaintiff filed an application to set aside the memorandum of appearance dated 19 February 1999 and to obtain judgment for the sum of RM1 million which the plaintiff had purely in its pleadings assessed, as its loss by way of general damages.

The learned Senior Assistant Registrar (SAR) after hearing arguments set aside the Memorandum of Appearance and gave the plaintiff liberty to enter judgment for the sum of RM1 million as general damages with costs, on 5 July 1999. The defendant thus appealed against that decision. In the meantime ex abdundante cautaela the defendant also applied to set aside the order of the SAR dated 5 July 1999. As to whether the defendant can proceed by way of this dual pronged approach is not my concern since both parties did not address me on this issue. Instead they have asked that I take both enclosures, namely, encl. 10 (this appeal) and encl. 12 (the application to set aside the judgment) together. I propose to deal with the appeal which should therefore put to rest encl. 12.

The Appeal

The writ and statement of claim was served on the defendant on 9 February 1999. Pursuant to O. 12 r. 4 of the Rules of the High Court 1980 (the RHC) the time limited for entering an appearance within the jurisdiction is eight days and pursuant to O. 3 r. 2 the eight days begin to run from 10 February 1999. Therefore the last day for entering appearance was 18 February 1999. Since 16 February 1999 and 17 February 1999 were public holidays and since the 18th was a working day, the public holidays would therefore have no effect in extending the period for entering appearance. Whilst it is admitted that the plaintiff only entered appearance by filing with the registry, on 19 February 1999, he had served a copy on 18 February 1999. I shall first deal with the issue of filing the Memorandum of Appearance late.

Whilst the defendant had by its own admission entered appearance a day late, there is no provision in the RHC that disallows a defendant from doing so. The rule governing late entering of appearance is O. 12 r. 5 which reads as follows:

5 (1) A defendant may not enter an appearance in an action after judgment has been entered therein except with the leave of the Court.

(2) Except as provided by paragraph (1), nothing in these rules or any writ or order thereunder shall be construed as precluding a defendant from entering an appearance in an action after the time limited for appearing, but if a defendant enters an appearance after that time, he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other thing later than if he had appeared within that time.

Therefore it is clear that a defendant is only precluded from entering appearance after judgment has