Pleadings and Amendments

Pleadings, Amendment, and Striking Out

Pleadings

• Pleadings are statements filed by parties in an action, outlining their claims and arguments.

• Pleadings are return statements (e.g., statement of claim, statement of defense).

• Filed by each party before trial.

• Contain claims, disputes, and arguments to be presented at trial.

Purpose of Pleadings:

• Define issues of facts and law to be decided.

• Provide specific notice to prevent surprise.

• Serve as a record for the courts to prevent res judicata.

Trial Without Pleadings:

• Generally, trials require pleadings, but a trial without pleadings is possible.

• After the defendant enters appearance, either party can apply.

• Apply via notice of application for an order to try the action without pleadings (Order 18 Rule 22).

• The court has discretion to allow or dismiss the application.

• If allowed, the court directs parties to prepare a statement of issues in dispute.

• Generally, trials involving personal matters like libel, slander, defamation, seduction, breach of promise to marry, false imprisonment, or fraud require pleadings.

Steps in Pleadings

• Plaintiff files a statement of claim.

• Order 19 Rule 1: The statement of claim must be issued and served.

• Failure to serve allows the defendant to apply to dismiss the case for want of prosecution.

• The court has discretion in dismissing the case (Sidek Mazir v The Government Of Malaysia & Ors [2018] 1 LNS 1478 ).

• Defendant must file and serve a defense, including any counterclaim.

• Failure to serve the defense allows the plaintiff to seek judgment in default of defense (Order 19 Rule 2-7).

• Plaintiff may reply to the statement of defense or counterclaim.

• Further pleadings (rejoinder, sojinder, rebuttal) require leave of court beyond the plaintiff's reply or defense to counterclaim.

Close of Pleadings

• Determined by Order 18 Rule 20.

• If the plaintiff serves a reply, pleadings close 14 days after.

• If no reply, pleadings close 14 days after the defense is served.

Importance of Knowing When Pleadings Close

• Certain processes take effect only after the close of pleadings.

• Examples:

  • Discovery (Order 24).

  • Amendment of pleadings (requires leave of court).

  • Joinder of issues (Order 18 Rule 14).

Formal Requirements of Pleadings

• Governed by the Rules of Court; follow format carefully.

• Order 18 Rule 6(1): States the year the writ was issued, suit number, title of action, court, names of plaintiff and defendant, type of pleading.

• Order 18 Rule 6(2): Statement of claim divided into consecutively numbered paragraphs.

• Order 18 Rule 6(3): Endorsement requirements.

• Order 18 Rule 6(5): Signed by party or solicitor.

Rules Governing Pleadings

• Order 18 Rules 7-12.

• Only plead facts, not evidence (except if a statute is the foundation of the claim or raising a point of law).

• Facts must be material to the case.

• Material facts: Necessary for formulating a complete cause of action.

  • Defined in Bruce v Oldham Press: "Necessary for the purpose of formulating a complete cause of action."

  • Estate of Liskucze: Facts put defendant on guard.

• Parties are bound by their pleadings. Cannot bring evidence to show something not pleaded.

Exceptions

• In Wong Thin Yue v PP [1969] 1 LNS 153 material facts not pleaded, the plaintiff is not allowed to succeed on appeal

• Chartered Bank v Yong Chan the court cannot consider causes of action which are not pleaded. Must decide on the pleaded case.

• Muliadi v Mohamad Abdul Kadir [1993] 3 CLJ 365 the Court of Appeal has stated that “Where a point has not been pleaded but is fully ventilated at the trial, so that the defendant is given a full opportunity to lead evidence of such point the rule that parties are bound by their pleadings does not apply”

• OCBC Securities Pte Ltd v Philip Wee Lay Swee points that are not pleaded in the statement of claim or statement of defence but which have been raised at the trial and on which the parties have been given the opportunity to adduce the evidence cannot later be objected for want of pleading

• Au Kean Hoe v Dato Donald Joseph Franklin (No 2) [2017] 1 LNS 1277: Matter filed for negligence. Court also gave for nuisance. The court took the statement of claim as a wholesome and did not catch the defendant by surprise. Allowed the claim for nuisance.

• Some matters must be specifically pleaded (Order 18 Rule 8(1)).

  • Specific performance.

  • Fraud.

  • Limitation.

  • Legality.

Illegality

• Maru Maha Wasuwan v Dato’ Seri Mohamed Nazri bin Abdul Aziz [2017] 5 MLJ 374: Courts are bound at all stages to take note of illegality even though not pleaded.

• Dato’ Hamzah bin Abdul Majid v Public Bank Berhad [2016] 6 MLJ 1”: Court may act on an ex facia illegality
  A case ex facia illegality exist is Dahan Cipta Sdn Bhd v Murudian a/l Ratnavelu [2015] 1 LNS 885"

• Unless it is ex facia illegality. In the absence of a plea of illegality ex facie, it would be a departure from the pleaded case.

Limitation

Tunku Ali Redhauddin Tuanku Muhriz v MBSB Bank Bhd [2019] 7 CLJ 277 (referred to in Tazja Enterprise Sdn Bhd v Golden Approach Sdn Bhd [2021] 7 CLJ 1):

• Tazja Enterprise Sdn Bhd v Golden Approach Sdn Bhd [2021] 7 CLJ 1: The court in this case considered Public Authority Protection Act 1948 limitation. Here, they are saying even if it is not pleaded, if you can still rely even in this case, it was not pleaded in the pleadings but were raised at the submissions and was dismissed as the public authority protection act has not been examined or considered by the High court. (the court did not rule that no amendment to pleading to plead reliance on the Public Authority Protection Act 1948 can be done. Even it is provided for under a specific Act even if it is not pleaded, the court can take into consideration.

• Also, look at your case Teleco Ali: But it must still be specifically pleaded. Best that you plead in your statement of defense immaterial of whether it is provided by a specific Act or your generic limitation act.

• Special damages must also be specifically pleaded with the amount.

• General damages must be pleaded, but the amount is not stated.

Further and Better Particulars

• Used to obtain more information about the pleadings.

Purpose

• Save time and costs.

• Narrow down the issues.

Process

• Write a formal letter to the other party requesting particulars.

• If refused or answers are insufficient, apply to the court via inter partes notice of application supported by affidavit.

• Enclose the letter requesting particulars with the application.

• Application must be made promptly before trial.

• The application can be opposed if it asks for evidence, irrelevant information, information already stated, or is a fishing expedition.

Striking Out Pleadings

• Important area for exams.

• Grounds (Order 18 Rule 19(1)):

  • (a) Discloses no reasonable cause of action or defense.

  • (b) Scandalous, frivolous, or vexatious.

  • (c) May prejudice, embarrass, or delay a fair trial.

  • (d) Abuse of court process.

• The application is at the discretion of the court.

• Both plaintiff and defendant can apply.

Procedure

• Notice of application supported by affidavit.

• Specify the grounds in the affidavit.

• Application must be made promptly.

Key Cases

• Tengku Ismail Tengku Bin Ubaidillah v Sidek Bin Awan [1979] 1 LNS 110: There must be a complete cause of action before any proceedings commenced.

• *Protimina (Persero) PT v Kartika Ratna Thahir *: Abusive language, derogatory remarks. For example, if you are know, that there is limitation has set in. Right that would be another situation can amount to file action and may be ex property which can amount to abuse of the court process..

• Benjamin Construction Sdn Bhd v Gunting Plantation Sdn Bhd [2018] 1 LNS 1403: issue of res judicata .

• Ansar Technologies Sdn Bhd v Pembinaan BLT Sdn Bhd there was an existing and valid arbitration agreement the subject matter to be referred to arbitration and res judicata. The High Court was considered the arbitration agreement. But this was reversed at the court of appeal which stated if there has been no decision or conduct to conclude the arbitration then there hasn’t any arbitration and there is no valid claim, therefore, this isn’t an abuse of court process since the defendant had invoked the arbitration agreement and there can be no abuse of process.

• Challenge is identifying the correct ground for striking out.

Amendment of Pleadings

• General rule: Permission should be allowed, however callous or negligent the party has been, if it can be made without injustice to the other side.

• Injustice means the other side can be compensated monetarily.

• Can be made at any stage of the proceedings, but best to make as early as possible.
  *Malayan Banking Bhd v Ting Yien Hiong [1990] 2 CLJ 720 the court will have to look at three questions. Is the app bona fide? Will the app affect prejudice to the other side (Cannot be compensated by cost)? Will it change of the thing thing.

• As stated in Clarapede v Commercial Union Association: Doesn't matter however callous or negligent you're. The ammendement is to be made allow,Doesn't ,matter however late you are wanting to make an ammendement

• Before trial appeal is made to the registrar during PTCM. *At trail after after after trail made to the judge preferably made as early as possible. *Hong Leong Co Finance: The App also needs to be sure it is not a tactical move. Is there affidavit support. Does this late in the app to amend the pleadings always be considered to the compensation? *Hong Leong Finance says there are four factors which an appellate court may disturb the decision to grant leave to amend:-

  • (i)If the judge has acted under some mistake of ,pr.2(law or fact in exercising his discretion. (ii)If the judge has exercised his discretion unjudicially. (iii)If the judge has clearly allowed himself to be influenced by wrong principles. (iv)If the appellate court is firmly persuaded that the decision is plainly wrong."* But need to have affidavit which displays a strong reason right for the app.
    Lembaga Kemajuan Tanah Persekutuan v Safuan bin Sulaiman (administrator of the estate of Sulaiman bin Tasrip, deceased) and other Appeals [2019] 1 LNS 1653 To have the decision set aside it must be very clearly shown that there has been a plain disregard of the interest of the parties.
    Leaf requirement is required except for the certain circumstances which is provided by the rules of court. You have the Order 20 Order 20 the rate says that order 20. Right. This is an afterservice. So but cannot add, delete, you want to change all you go out order 15 rule six so. Cannot change new cause of action, need to do it made before that then have to do before. Then what does order 23. Pleading maybe amend at any time now. You already amended. So the other side give 14 to serve the reply. Then what if. Object to do the amending. They can even strike it out and is a cost thingy on yourself!

Instances Where Amendment Will Not Be Allowed

• The amendment causes prejudice to the other party which cannot be compensated with cost. [The Kyoan Maru] also look at this for this.
  *If the application is a frivolous app? is it not bona fide ALVII if so is is meant to be all the while still fail? the shift of chong ten years have passed! if that there has been admission that we can consciously made. This. Have been testing a lot? [Hollis v Burton] . Amendment this not allowed after the you are that it it cannot be suit? It cannot be allow. Chin case is like is is changing character of the suite. [Raphael Pura v Insas]. Not Bona Fide! Taos show for more. Now amendment. We have new course of action

• Amendment causes prejudice that cannot be compensated by cost. The Mardina Trader (No 2) [1975] 1 QB 134; [1974] 3 WLR 584; [1974] 2 Lloyd’s Law Rep 216; [1974] 2 All ER 609: Where a delay is likely to occur, the delay will make the application unsuccessful

  • If the application is frivolous or not bona fide:

    • Where the actions will still fail (Ames v Nicholson (1921)2 KB 280).

    • Where there has been a delay of ten years to make the application (Chip Thye Enterprise Sdn Bhd v Asia Commercial Finance (M) Bhd [1992] 2 CLJ 1213).
      *Amendment to withdraw a consciously made statement: Annen v Rattee & Kett Ltd [1969] 1WLR 530 1960 ALL ER 413 where it was held that if an amendment sought involves only a refusal to admit some particular allegation in the statement of defence it may be allowed just as any other amendment but the withdrawal of a deliberate admission should be allowed with grate caution especially if it is an admission of a fact.

• Amendment to raise a cause of action after the action has commenced:

  • Amendment is changing their the whole character of the suit: Chin Construction.

  • The defendant made an application to amend his defence just a couple of days before trial: Lack of merit, not a bona fide app dismissal.
    *Adding the app or to raise a new course after you have after the expired what you do? So, so what. Exception given, other of the exception have been to look at if it how does it apply.
    Amendment to correct the name of the party, where the mistake that don't mislead anyone.
    *If have the new course arise from the same point where it said you said, if you don't look at against those. A is to correct a clerical mistake: It allows party to make amendment to judgement or order comes about to say

• Sharikat Marajar v Sharikat Masinda Where there is jurisdiction under the court, or how to verify motor to set aside his own order or or or order, but here is where where not the intention and order than yes. Is what you tell. The error mission must be in Express the intention of the court.

• Order 20 Rule 5(3): Where an amendment is to correct a mistatement of the name of a party and the mistake was not misleading. Order 20 Rule 5(4): An amendment to their capacity in which the person sues. The court only retains the jurisdiction to alter verify Model to. Right to correct that: the drawing of this is so clear then know yes. Your other one doesn't give the law so can't just have right which you have been.

• Sleep Rule (Order 20 Rule 11): Clerical mistakes. If is something like 1 million and the court says it it's a 100k.