JUDGMENT

Zaleha Zahari JCA:

[1] The appellants were insured by Perdana Cigna Insurance Bhd ("the insurers") under a Marine Open Policy against loss or damage arising from all shipping and sendings on or after 20 October 1992. The policy issued by the insurers was at all times a contract of indemnity. The policy, inter alia , included a subrogation clause, that at the request of the insurers, the appellants shall subrogate to the insurers their rights and claims against others and permit a suit to be brought in the appellants' name at the insurers' expense.

[2] By letter dated 23 February 1995, the appellants submitted a claim in respect of damage caused to certain equipment on 19 April 1994 during the carriage/transportation from the ship on discharge to the terminal for storage pending delivery to the appellants, as consignee. Letter dated 4 April 1995, minutes of meeting held on 4 April 1995, letter dated 27 April 1995 to GEC-Marconi Projects (Malaysia) Sdn. Bhd and letter dated 2 August 1995, show that the insurers admitted the appellants' claim. The settlement arrived at was that the damaged equipment would be replaced by the supplier, GEC-Marconi Projects (Malaysia) Sdn. Bhd. ("GEC-Marconi") and that payment would be made directly to GEC-Marconi. Subsequently, on 21 May 1997, consequential upon the agreement between the insurers and the appellants, the insurers paid to GEC-Marconi a sum of £176,987.

[3] However, prior to the above payment, on 19 April 1995, pursuant to the terms of the policy, in exercise of the insurers right of subrogation, Messrs Shook Lin & Bok, having been retained by the insurers, at the insurers' expense, filed two suits in the appellants' names namely Kuala Lumpur High Court No. D1-27-21-1995 against Malaysia International Shipping Corporation ("MISC", the 1st respondent in this appeal) and Kuala Lumpur High Court No. D1-21-1-1995 against Kelang Container Terminal Berhad and Kontena Nasional Berhad (the 2nd and 3rd respondent in this appeal).

[4] Both actions were subsequently consolidated pursuant to Court order dated 9 February 1998. Thereafter, on 28 April 1999, MISC, the 1st respondent in this appeal, filed an application to strike out the suit instituted against them on the ground that Messrs Shook Lin & Bok had no authority to act on behalf of the 2nd appellant for failure to furnish any evidence of having been appointed by the Attorney General's Chambers confirming that they have been appointed to act for the Government of Malaysia.

[5] The 1st respondent's striking out application was dismissed by the senior assistant registrar (SAR) on 16 February 2001. On appeal by the 1st respondent to the judge-in-chambers against the SAR's decision, on 19 April 1994, the judge allowed the 1st respondent's appeal, reversed the decision of the SAR, and struck out the appellants' suit with no order as to costs. The 2nd and 3rd respondent have agreed to be bound by the decision of the High Court Judge although they did not themselves file an application to strike out.

[6] The judge was of the view that s. 24(3) of the Government Proceedings Act 1956 ("the Act") was applicable. He then ruled that Messrs Shook Lin & Bok had no authority to act on behalf of the Government of Malaysia as they had failed to furnish any evidence of having been duly retained by the Attorney General's Chambers to act for the Government of Malaysia. The judge ruled that a solicitor who has not shown any authority to act for the party he purports to act, the suit filed by him must by struck out. The judge was further of the view that the doctrine of subrogation and/or its particulars were material facts which must be pleaded. He then ruled that the failure to plead the doctrine of subrogation and particularizing the facts giving rise to the same in the statement of claim, was fatal. As for letter of subrogation dated 21 May 1997, the judge was of the view that that letter was not a proper letter of subrogation by reason of that letter no