JUDGMENT

Low Hop Bing J:

Application

This is the defendants' application in encl. (9) for an order that: (1) the originating summons herein be converted into a writ under O. 28 r. 8 of the Rules of the High Court 1980; and (2) En. KP Ng, his law firm and the legal assistants in his law firm be disqualified from acting in this case.

Submission For Defendants

It was submitted by En. Tee Geok Hock, learned counsel for the defendants, that where there is likely to be substantial dispute of fact, writ is the proper mode of proceedings and originating summons is not appropriate. He added that disputed facts of importance to a case should not be tried or assessed by analysis of conflicting affidavits and that such factual disputes should be tried and decided by oral testimonies of relevant witnesses who can be compelled by subpoena to testify in order to find out the truth of the matter. Order 5 r. 4(2) of the Rules of the High Court 1980 and Ong Ah Moy v. Nga Ah Fan & Ors[1978] 1 MLJ 177 and Ting Ling Kiew & Anor v. Tang Eng Iron Works Co Ltd[1992] 3 CLJ 1685; [1992] 1 CLJ (Rep) 331 were cited in support.

For the purposes of disqualifying En. KP Ng, his law firm and the legal assistants in his law firm from acting for the plaintiff, it was argued for the defendants that an advocate and solicitor should not appear as counsel in a case where he is likely to be called as a witness, and that Encik KP Ng was actively involved in discussions between plaintiff and second defendant touching on the subject matter of this case ie, BSN Fixed Deposit Account.

The defendants' learned counsel informed the court that the defendants intend to call En. KP Ng as a witness, as a result of which he concluded that En. KP Ng, his law firm and the legal assistants in his law firm should be disqualified from acting in this case. Support for this contention was derived from the decision of Abdul Malik Ishak, J in Sykt Pengangkutan Sakti Sdn Bhd v. Tan Joo Khing t/a Bengkel Sen Tak[1997] 3 CLJ 754.

Plaintiff's Response

En. KP Ng, learned counsel for the plaintiff, in response to the application for the conversion of originating summons to a writ, conceded that there is only one issue in dispute in the case herein ie, as to who is entitled to the money in the fixed deposit account. He relied on the presumption that the principle of survivorship applies so that the plaintiff who is the survivor is entitled thereto. He added that if the defendants wish to rebut the presumption, the defendants have to show special circumstances expecially as to who has contributed to the said account. However, he argued that the defendants in their affidavits have failed to affirm any allegation of facts to rebut this presumption. In this respect, he contended that even if the originating summons were to be converted to a writ, there would be no witness who could possibly give oral evidence to resolve this dispute.

On the issue of disqualifying En. KP Ng, his law firm and the legal assistants from his law firm from acting for the plaintiff, it was submitted for the plaintiff that the purpose of the discussion in which En. KP Ng was present was to achieve an amicable settlement between the plaintiff and the defendants.

He contended that as a matter of public policy and law, an advocate who represents a party in any discussion for settlement on a without prejudice basis and hence to avoid litigation cannot be called as witness, relying on Mole v. Mole[1950] 2 All ER 328; McTaggart v. McTaggart[1948] 2 All ER 754 both of which were referred to in Ng Chuan Seng v. Tan Ah Yoke[1969] 2 MLJ 75. He also cited Pool v. Pool[1951] 5 All ER 563.

He then referred to s. 23 of the Evidence Act 1950 as the discussion was conducted on a "without prejudice" basis and sought support in Oh Kuang Liang v. Associated Wood Ind Sdn Bhd[1995] 2 CLJ 961.

Decision Of The Court

Originating Summons Or Writ?

For the purposes of this judgment, a reference to an order or rule is a reference to that order or ru