Gopal Sri Ram FCJ:

[1] There are three appeals before us. The respondent to these appeals is a bank. It lent money to three companies, Waja Manufacturing (M) Sdn Bhd, Polyrak Industries Sdn Bhd and Portola Closure Manufacturing Sdn Bhd. Its case is that these loans were defaulted upon. So, it brought separate actions against each of the borrowers and the guarantors of the loans. The three companies and the guarantors brought a separate action against the bank for breach of an agreement to disburse certain monies that it had promised to advance for the purchase of some machinery. Later, the bank took out a summons for judgment in each of its suits. The appellants are resisting the summonses. They also took out a summons to consolidate the actions. That summons was dismissed by the High Court. An appeal to the Court of Appeal failed. The appellants then applied to this court and obtained leave to appeal on the question: whether the filing of a defence is a prerequisite to an application by a defendant for an order that matters be consolidated or heard together under O. 4 r. 1 of the Rules of the High Court. Arguments were heard, the question reserved though answered in the negative, these appeals were nevertheless dismissed for the reasons that now follow.

[2] The only ground on which the Court of Appeal dismissed the appeal is that the appellants had not filed their defence. That finding is flawed for two reasons, one having to do with the circumstances of this case and the other based on principle. As for the first, it is clear that in the present instance the appellants having been served with summonses for judgment are relieved from delivering their defences to the several actions until after the disposal of those summonses. This is made clear by RHC O. 18 r. 2 which states:

(1) Subject to paragraph (2), a defendant who enters an appearance in, and intends to defend, an action must, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 14 days after the time limited for appearing or after the statement of claim is served on him, whichever is the later.

(2) If a summons under Order 14, rule 1, is served on a defendant before he serves his defence, paragraph (1) shall not have effect in relation to him unless by the order made on the summons he is given leave to defend the action and, in that case, shall have effect as if it required him to serve his defence within 14 days after the making of the order or within such other period as may be specified therein.

[3] As for the second reason, this turns on the construction of RHC O. 4 r. 1 which reads:

(1) Where two or more causes or matter are pending, then, if it appears to the Court:

(a) that some common question of law or fact arises in both or all of them; or

(b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; or

(c) that for some other reason it is desirable to make an order under this rule,

the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them.

As may be seen, there is no requirement that a defence must have been filed. Yet, the bank sought to argue otherwise in reliance of the decision in Daws v. Daily Sketch and Daily Graphic Ltd [1960] 1 WLR 126 which it said is authority for the proposition that the filing of a defence is a sine qua non for the rule to bite.

[4]Daws was a libel action. Two suits had been filed against the same defendants in respect of the same article. The plaintiff in the first suit and the plaintiffs in the second suit were represented by the same solicitors. In the first suit the defendants admitted that the words complained of referred to the plaintiff, denied that the words were defamatory, and pleaded an offer