A claim cannot be struck out solely on limitation grounds without allowing the plaintiff to demonstrate exceptions to the statute; full examination at trial is necessary.

ABDUL AZIZ J

The learned senior assistant registrar dismissed the defendant's application under O 18 r 19(1)(a) for the strikingout of the statement of claim in this action, and for the dismissal of this action, on the ground that the statement of claim disclosed no reasonable cause of action. The defendant now appeals.

The claim of the plaintiffs is for the paymentof a sum allegedly due on an overdraft facility. Learned counsel for the defendant argued this appeal on the basis that the cause of action accrued on 16 October 1987, when, as stated in para 12 of the statement of claim, the plaintiffs made a demand for payment.

According to paras 14 and 15 of the statement of claim, the plaintiffs had, in an earlier suit, Kuala Lumpur High Court Suit No D4–23–429–88, filed on 19 February 1988, instituted action to recover the debt but, on 16 July 1993, byconsent of both parties, the action was struck out with liberty to file afresh. The statement of claim does not state the circumstances that had given rise to the striking out.

On 15 October 1993 the six-year period — as provided in s 6Limitation Act 1953

The present action was only brought on 24 April 1997.

In para 9 of his statement of defence, filed on10 April 1998, the defendant claims that, notwithstanding that on 16 July 1993 liberty to file afresh was given, the plaintiffs’ action has been barred by limitation. The defendant followed up the filing of his statement of defence with the filing of hisstriking-out application on 13 April 1998, which the senior assistant registrar dismissed. The ground of the application being that the statement of claim does not disclose a reasonable cause of action, by O 18 r 19(2) no affidavit is admissible, and none hasbeen used, for the purposes of the application. One has to look only at the statement of claim to determine whether it discloses no reasonable cause of action.

In Dismore v Milton [1938] 3 All ER 762, the English Court of Appeal held, as stated in the headnote, that ‘where it appears from a statement of claim that the plaintiff's cause of action arose at a time before the periodprescribed by the Statute of Limitations it is not possible for the defendant to have the statement of claim struck out on the ground that it discloses no reasonable cause of action …’. The reason is given at p 763 as follows:

Itis because the plaintiff may be able to show that he is entitled to bring his action, notwithstanding the expiration of the statutory period, by reason of one of the exceptions contained in the Limitation Act … .

So according to Dismore v Milton , it is not possible for the defendant here to have the statement of claim struck out on the ground that it discloses no reasonable cause of action.

Learned counsel forthe defendant relied on Riches v Director of Public Prosecutions [1973] 2 All ER 935, another decision of the English Court of Appeal, where, at p938h, Davies LJ thought that the dicta in Dismore v Milton were somewhat too wide, and where the Court of Appeal held that the statement of claim should be struck out, one of the reasons being, as stated in the headnote, that:

(ii) it was open to the court to strike out a statement of claim as disclosing no reasonable cause of action where the facts alleged fell outside the limitation period, although in certain circumstances a plaintiff might be heldto have a reasonable cause of action, for example where it could be shown that there might be an escape from the Statute of Limitations; where, however, it was clear that the defendant was going to rely on the statute and there was nothing before the court tosuggest that the plaintiff could escape from it, the claim would be struck out.

It must be appreciated, however, that in that case the application to strike out was not only on the ground that the statement of claim disclosedno reasonable cause of action but also on the ground that it was vexatious and an abuse of the process of the court. Evidence was therefore admissible for the court