Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 MarsdenLR 6072

HIGH COURT (KUALA LUMPUR)
LEONG WAI HONG, JC
Lee Ngan Hoo – Appellant
Versus
Insp Sarawanan al Panrengam & Ors – Respondent
WRIT OF SUMMON NO WA-21NCvC-54-07 OF 2023

Advocates:
Nik Ahmed Asraf bin Nik Othman (Lee & Partners) for the plaintiff.
Siti Syakimah bt Ibrahim (with Abdul Hakim bin Abdul Keram @ Karem) (Jabatan Peguam Negara) for the defendants.

A plaintiff can discontinue a suit, but courts have discretion to deny leave to file afresh based on circumstances, particularly concerning limitation periods and justice to defendants.

Headnote:(A) Rules of Court 2012 - Order 21 rule 2 and rule 3 - Discontinuance of suit - Plaintiff sought to discontinue her suit with liberty to file afresh but lacked preparation for trial and provided flimsy reasons for discontinuance - Court allowed discontinuance but without liberty to file afresh and imposed costs on plaintiff - The decision was influenced by the limitation period which barred a fresh suit. (Paras 7, 9, 30, 31, 32)

(B) The Court’s discretion - Courts have wide discretion to allow a discontinuance with or without liberty to file afresh, depending on the case circumstances and the potential injustice to the defendant. (Paras 15, 27, 28)

(C) Limitation of action - The court emphasized that claims against public authorities must be filed within three years after the alleged cause of action, highlighting the importance of adherence to limitation statutes. (Paras 31, 32)

Facts of the case:
A mother filed a suit against law enforcement for alleged negligence following her son’s death while under remand, but failed to prepare adequately for trial, leading to her request to discontinue the suit.

Findings of Court:
The court permitted the plaintiff to discontinue but denied her liberty to file afresh due to the expiration of the limitation period, imposing costs on the plaintiff.

Issues: Key issues included the plaintiff’s lack of preparation for trial, the appropriateness of discontinuance, and the impact of the limitation period on her ability to file again.

Ratio Decidendi: The court ruled that a plaintiff's right to discontinue must be balanced against the defendant's rights and the necessity to maintain judicial efficiency, and in this case, allowed discontinuance but denied the right to file afresh due to clear limitations.

Result: Discontinuance allowed without liberty to file afresh; costs awarded to defendants.

Leong Wai Hong JC:

Judgment

[Enclosure 27]

Introduction

[1]This is a tragic case. The plaintiff is the mother of a son who had died while under remand in the Kuala Kubu Bharu Satellite Prison on 03-03-2021. On 18-07-2023 she filed a suit at the High Court against the Investigating Officer for negligence, breach of duty and omission of duty; his superiors and the Malaysian Government for vicarious liability.

[2]I fixed the trial for 8 days commencing on 06-05-2024 to 09-05-2024 and from 25-11-2024 to 28-11-2024.

[3]However, on 03-05-2024 solicitors for the plaintiff filed a Notice of Application in Enclosure 27 for leave to discontinue the plaintiff’s suit with liberty to file afresh under Order 21 rule 3 of the Rules of Court 2012 (“ ROC ”). [“Application For Leave to Discontinue”].

[4]The supporting affidavit dated 03-05-2024 was affirmed not by the plaintiff but by a solicitor from the firm of solicitors acting for the plaintiff. The reason given was that allegedly the plaintiff has failed to give documents to them to do the trial. I find this reason flimsy for reasons I will articulate below.

[5]As the Application For Leave to Discontinue was only filed on 03-05-2024, just 3 days before the 8-day trial commenced on 06-05-2024, I heard the Application For Leave to Discontinue urgently on 06-05-2024.

[6]It was obvious counsel for the plaintiff did not prepare for trial for reasons best known to him -

i.I had way back on 23-11-2023 given directions to file all necessary documents and witness statements for trial by 03-01-2024 and fixed trial for 8 days on 06-05-2024 to 09-05-2024 and from 25-11-2024 to 28-11-2024.

ii.As of 06-05-2024 which is the first day of trial solicitors for the plaintiff have yet to file any bundle of documents or witness statements of the plaintiff for trial.

iii.The Statement of Claim contained a detailed account of the facts and claim and it is inconceivable that the witness statement of the plaintiff was not even prepared and filed.

iv.The affidavit in support of the Application For Leave to Discontinue dated 03-05-2024 [Enclosure 28] was not affirmed by the plaintiff but by the solicitor. It was a bare affidavit without any documents exhibited. It merely said the plaintiff had failed to give them documents to prepare for trial.

v.The defendants have filed their bundle of documents and six witness statements for trial on 29-03-2024.

[7]On 06-05-2024 after hearing submissions I had allowed the plaintiff discontinuance of her suit but without liberty to file afresh with costs of RM 5,000 to the defendants.

[8]The Court sympathises with the plaintiff’s predicament but ordered no liberty to file afresh as learned counsel for the defendants objected to liberty to file afresh as a new suit is now barred by limitation.

[9]The plaintiff has appealed to the Court of Appeal on 4.06.2024 against the part of my order which had ordered no liberty to file afresh. These are my Grounds of Judgment.

The Law On Discontinuance Of Action Requiring Leave of Court Under Order 21 rule 3 ROC

[10]The law on the discontinuance of a suit by a plaintiff is found in Order 21 of the ROC Order 21 rule 2(1) of the Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd Prof Dato’ Dr Rahmat Mohamad v Shahizad Sulaiman

[11] Order 21 rule 2 of the ROC

Discontinuance of action without leave (O. 21 r. 2)

(2) The plaintiff in an action begun by writ may, without the leave of the Court, discontinue the action or withdraw any particular claim made by him therein, as against any or all of the defendants at any time not later than fourteen days after the service of the defence on him or, if there are two or more defendants, of the defence last served, by serving a notice in Form 32 to that effect on the defendant concerned.

[Emphasis added]

[12]The law on discontinuance of an action requiring leave of court under Order 21 rule 3(1) ROC 2012

[13]The two decisions of the Court of Appeal in Majlis Peguam Malaysia & Ors v Raja Segaran S Krishnan Newlake Devel

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2025 MarsdenLR 6072

HIGH COURT (KUALA LUMPUR)LEONG WAI HONG, JCLee Ngan Hoo – AppellantVersusInsp Sarawanan al Panrengam & Ors – RespondentWRIT OF SUMMON NO WA-21NCvC-54-07 OF 2023

A plaintiff can discontinue a suit, but courts have discretion to deny leave to file afresh based on circumstances, particularly concerning limitation periods and justice to defendants.

Leong Wai Hong JC:

HIGH COURT (KUALA LUMPUR)
LEONG WAI HONG, JC
Lee Ngan Hoo – Appellant
Versus
Insp Sarawanan al Panrengam & Ors – Respondent
WRIT OF SUMMON NO WA-21NCvC-54-07 OF 2023