Striking out pleadings must be cautiously applied; delays by defendants can adversely affect their application and party identification is crucial for negligence claims.

Abdul Malik Ishak JCA

(delivering the ex tempore judgment of the court):

This is an ex tempore judgment of this court.

We will refer the parties as the plaintiffs and the defendants like what they were referred to by the High Court.

At the outset, the plaintiffs withdrew their claim against the second defendant (Kementerian Kesihatan Malaysia) and the High Court judge forthwith struck out the plaintiffs’ claim against the second defendant.

The defendants filed an application to strike out the plaintiffs’ writ of summons and the statement of claim under O 18 r 19 of the Rules of the High Court 1980 (‘RHC’) and under the inherent jurisdiction of the court. In due course, the High Court dismissed the defendants’ application and they now appeal to this court.

It is trite law that only in plain and obvious cases that recourse should be had to the summary process of striking out pleadings under O 18 r 19 of the RHC (per Abdul Hamid Omar CJ (Malaya) (later the Lord President of the Supreme Court) in Sim Kie Chon v Superintendent of Pudu Prison & Ors

The power to strike out is a drastic power and should be exercised with utmost caution (per Lee Hun Hoe CJ (Borneo) in Lee Nyan Choi v Voon Noon

Striking out will not be entertained in the following situations (the categories are not closed and it will expand according to the factual matrix of each case):

(a)where the action contains a point of law which requires a serious argument, it is not appropriate to strike it out ( Oh Thevesa v Sia Hok Chai

(b)where it involves a complex case ( Pacific Internet Ltd v Catcha.Com Pte Ltd

(c)where the deed of settlement is challenged for being illegal, void and unenforceable and contrary to the Contracts Act 1950 Lau Chee Ching v Niah Native Logging Sdn Bhd

(d)where it involves a minute examination of the documents tendered and a thorough examination of the relevant terms in the agreements between the parties ( MJC City Development Sdn Bhd v Everise Departmental Store Sdn Bhd

The facts of the present appeal concerned the death of Sutini Yadi after she received treatment in a government hospital. The plaintiffs being the family members of the deceased brought an action against the defendants. The writ of summons and the statement of claim dated 17 August 2007 named the Director of the Hospital Selayang and the Government of Malaysia as the first and third defendants respectively. The unconditional appearance and later the defence dated 27 june 2008 were filed by the attorney-general’s chambers on behalf of the first and third defendants respectively. After pleadings were closed, the matter was then set for case management. The bundles of documents on both sides were filed. The plaintiffs’ witness statements were also filed. Two years seven months and twenty-five days after filing their defence, the defendants filed their application to strike out the plaintiffs’ writ of summons and the statement of claim. The delay must be construed adversely against the defendants. Although a party wishing to strike out the pleadings could do so ‘at any stage of the proceedings’, this does not give the party the right to adopt a lackadaisal attitude and sleep on their rights (Loh Eng Leong & 2 Ors v Lo Mu Sen & Sons Sdn Bhd & Anors Jamir Hassan v Kang Min

The defendants’ striking out application hinged on three main grounds, namely:

(a)that the plaintiffs failed to disclose a reasonable cause of action against the defendants by reason of the failure on the part of the plaintiffs to allude to the particulars of negligence against the tortfeasors who were not named as the defendants in the writ of summons and the statement of claim;

(b)that the plaintiffs’ claims are scandalous, frivolous or vexatious and failed to comply with the provisions of ss 5 and 6 of the Government Proceedings Act 1956 (‘the Act’)

(c)that the plaintiffs’ claims constitute an abuse of the process of the court.

The defendants argue that in the statement of claim the plaintiffs named the Director of th