Striking Out Pleadings Under The Rules of The High Court 1980
BY: P. RAU & S. A. MALICK
INTERNATIONAL LAW SERIES
There are two important provisions in the Rules of the High Court 1980 and also in the Subordinate Court Rules 1980 which perhaps are capable of determining the positive or negative side of pleadings, so to say, at quite an early stage of litigation. One such provision, of course, is Order 14 of the Rules of High Court 1980, corresponding to which is Order 26A of the Subordinate Court Rules 1980. These provisions provide for summary judgments in favor of the plaintiffs where their claims are impeccable, and sending the matters for full-fledged trials will not provide the defendants any leeway establish defences where there are none. The other provisions are Order 18 of the Rules of the High Court 1980 and Order 14 rule 21 of the Subordinate Courts Rules 1980 which provide for striking out pleadings which mean and include the statement of claim and the defence, as also the counterclaim. These provisions empower the courts to strike out the pleadings that (a) disclose no reasonable cause of action or defence, as the case may be; or (b) are scandalous, frivolous or vexatious; or (c) may prejudice, embarrass or delay the fair trial of the action; or (d) are otherwise an abuse of the process of the court. It must be noted that order 92 rule 4 of the Rules of the High Court 1980 and order 53 rule 11 of the Subordinate Court Rules 1980 also confer inherent powers on the High Court and the Subordinate Court respectively 'to make any order as may be necessary to prevent injustice or to prevent injustice or to prevent and abuse of the process of the court.' Common to all the grounds stated in Order 18 rule 19 of the Rules of the High Court 1980 or order 14 rule 21 of the Subordinate Court Rules 1980 that enable the courts to strike out pleadings is the fact that either the relief sought in the Statement of Claim or the points raised in defence are wholly unsustainable.
It is normal for a plaintiff or a defendant to invoke all the subparagraph or Order 18 rule 19 of the Rules of the High Court 1980 or Order 14 rule 21 of the Subordinate Court Rules 1980, as the case may be, for having their pleadings struck out. A small point of conflict is that in the case of subparagraph (a), which covers statements of claim having no cause of action, no affidavit can be relied on by a defendant while it is permissible to refer to affidavits where the other subparagraph also are invoked in common. Perhaps in such cases, as has been done in certain instances, the Court may first consider only the question of the statement of claim disclosing no cause of action and defer considering the issues under the first limb, the rest of them are indeed superfluous. Only where the statement of claim discloses a reasonable cause of action, the Court may consider the other limbs, if the applicant still desires findings on such issues as are covered by all or any of the other limbs.
The standard of submissions made by the members of the Malaysian Bar and the judicial findings on them by the learned Judges of the High Court and the treatment of appeals by the court of appeal and the Federal Court are simply exhilarating.
We fervently hope that this book on STRIKING OUT PLEADINGS will receive the patronage of the members of the Bench as well as those of the Bar and the others who may find the book helpful.
We are grateful to Hj Dr Syed Ibrahim of the International Law Book Services, Petaling Jaya for giving us the opportunity to write a book on a very interesting subject.