Summary on Civil Procedure : Striking out Pleading

Ok guys! This is the note on

Civil Procedure - How to strike out pleading!

................Here it comes................

1. STRIKING OUT UNDER O18 R19

è O18 R 19:

§ ‘A party may apply to strike out either i) an opponent pleading or any part of it, or ii) the pf’s indorsement on the writ’.

· i) Only other party / all party / no need to be df to apply ; or

· ii) Only df - ‘Indorsement’: It is a short paragraph found in the writ. In that para, the pf’s COA is described.

WHO CAN APPLY

1) Either party may apply. If Df is applying to strike out, he will either;

· Apply for striking out the pf’s indorsement of writ; or

· Apply for striking out the SOC (whole / part of it).

2) If pf is applying to strike out, he will either;

· Apply for striking out the SOD (whole / part of it).

ORDER THAT COURT MAY MADE

1) Df apply to strike out the pf’s indorsement on the writ + the application is successful. The order from ct is;

§ ‘The pf’s action will be dismissed with cost’.

· Once success in trike out the pf’s indorsement (COA), there will be no more action, as indorsement is the heart & soul of the pf’s action.

2) If Df apply to strike out the pf’s SOC:

i. If Court strikes out the whole SOC =

§ ‘The pf’s action will be dismissed with cost’.

ii. If Court strikes out part of the SOC =

§ The qs now is that, ‘Is the remainder of the SOC is sufficient to bring an action vs df?

§ ‘If yes, pf ‘s action will proceed.’

§ ‘If no, pf’s action will be dismissed.’

3) If Pf apply to strike out the df’s SOD:

i. If Court strikes out the whole SOD =

§ ‘The judgment is to the pf’s side’.

ii. If Court strikes out part of the SOD =

§ The qs now is that, ‘Is the remainder of the SOD is sufficient to sustain a defence to the Pf’s claim?

§ ‘If yes, the case will proceed.’

§ ‘If no, the judgment will be on pf’s side.’

PROCEDURES

§ WHEN?

· O18 R19; “Application may be made out at any stage of the proceeding”.

· However, this proposition has been further explained in the decided cases, & the principles are as follows;

1. The application must be made promptly.

2. The application must be made without any delay.

3. Preferably, the application must be made before the close of the pleading.

Rationale: As pleading is very preliminary procedure, the solicitor should have known right away.

Held: If party delay their application to strike out without any grounds, this will affect their application.

§ HOW?

· Interlocutory Proceeding; The application to strike out must be made:

Ø Via notice of application supported by affidavit.

Ø Affidavit: Must state precisely which ground that the applicant relied on to strike out.

Ø The application must state precisely the ct’s order that the applicant is seeking. (Eg: The whole SOC / etc).

GROUNDS TO APPLY FOR STRIKING OUT

§ O18 R19(1)(a)

· “The pleading discloses no reasonable COA / defence”.

§ O18 R19(1)(b)

· “The pleading are scandalous, frivolous & vacsicious”.

§ O18 R19(1)(c)

· “The pleading will prejudice, embrass or delay a fair trial of action”.

§ O18 R19(1)(d)

· “The pleading are otherwise is an abuse of court process”.

GROUNDS TOGETHER WITH EXPLANATION

§ O18 R19(1)(a)

· “The pleading discloses no reasonable COA / defence”.

· On the face of pleading, there is no reasonable COA / defence.

· What is meant by reasonable COA / defence:

Ø It is COA / defence with some chance of success when the allegations in the pleading are read & considered.

· To strike out using this ground, it must be manifestly clear that on the face that the pleading that there is no COA / defence.

Ø The appellant cannot lead evidence in the affidavit of support to prove that there is no COA / defence,

Ø It must be clear just from reading the pleading.

FOC: Certain magistrates who in the course of judicial proceeding make some defamatory remarks about pf. Pf sued magistrates in defamation. The pleading clearly showed the defamatory were made in the course of judicial proceeding, thus magistrate is protected with privileged.

Held: On the face of the pleading itself, there is no COA as the magistrate is protected with privileged. Application to strike out is accepted.

FOC: A baby was found dead. The pathologist is requested to do a post mortem. Patho has found out that there is a large amount of morphine in the baby stomach. Due to this report, the parents were charged with criminal negligence, morphine poisoning. At the trial of the action, pf’s expert witness found that there was no morphine in the baby stomach. This point is no disputed by the prosecution, lead to the acquittal of the parents. The baby’s parents the sued the patho. for negligence in the production of the post mortem report. An application to strike out such case is done by the patho as he said he is protected by privilege when he gives evidence about the morphine.

Held: Application to strike out is accepted. The patho is protected with privilege.

FOC: It is the case for malicious prosecution (has been discussion in the 1^st topic).

Held: On the face of the pleading, there is no COA, so application to strike out is accepted.

· NOTE: If pf apply under O18 R19(1)(a), pf cannot apply under this order & at the same time applies for summary judgment in the same application. (Case: M. Azam v UMBC)

· QS: If the application of pf is barred with limitation, can the df apply to strike out as per O18 R19(1)(a)?

Ø No. Df cannot use ground (a), as ground is talking about COA/defence. If it is about LP, this does not mean the pf does not has COA. Pf did has one, but it barred with LP. LP does not remove COA, it merely bars COA. *For LP, can go for ground (b) or (d).

· QS: If pf’s COA is ‘weak & unlikely’ to succeed, can ground (a) be used to strike out the action?

Ø No. This is because ground (a) needs it to be manifestly clear that it has not reasonable COA / defence. (Case: Loh Holdings Sdn Bhd v Peglin Dev. Sdn Bhd)

· If an application is made under ground (a), applicant cannot lead the evidence to prove that there is no reasonable COA / defence, as it must be clear just by reading the pleading.

Ø No. This is because ground (a) needs it to be manifestly clear that it has not reasonable COA / defence. (Case: Zakaria Mohd Esa v Dato Abdul Aziz)

§ O18 R19(1)(b)

· “The pleading are scandalous, frivolous & vacsicious”.

· ‘Scandalous’ = Unpleasant / unnecessary with aim to embrass / insult.

FOC / Held: Mr Tahir was a high ranking officer in Pertamina, an Indonesia’s oil co. When Mr Tahir died, he has large amount of money in the bank was obtained. There is allegation that he was corrupting while in the course of his work. In respond, his wife has served a pleading in which alleged that most of the officers & wives are corrupt. The pf naturally applied to strike out such part from the pleading based on ground (b); which aim to embrass & annoy without any proper cause.

· ‘Frivalous’ = Petty / useless

· ‘Vassacious’ = Something that is merely to annoy.

Ø When pf is barred by LP, df may applied to strike out the pf’s action using this ground as it frivolous. (Case: Riches v DPP)

§ O18 R19(1)(c)

· “The pleading will prejudice, embarrass or delay a fair trial of action”.

· To succeed using this ground, the pleading must be proven that such pleading is prejudicing the other party.

· Usually together with this ground, ground (a) / (d) will be applied too.

§ O18 R19(1)(d)

· “The pleading are otherwise is an abuse of court process”.

· ‘Otherwise’ = Implied inform that this is the widest ground for the applicant to apply for striking out application.

· Court process must not be used a an improper purposes, it must be used as genuine & real purpose = No ulterior motive.

Held: Court was convinced that the pleading was a lie, & the whole thing was a false. Pleading was strike out as it was abusing the court process.

FOC: The df was a co & pf apply for a summary judgment (SJ) vs the df. SJ = Getting the judgment without trial. The pf’s application for SJ has been dismissed. After this, pf applied to wind up the df’s co. there is no justification for such application.

Held: It was clear that such application was only aiming to embarrass df’s co. as this will be notified on the notice of court’s notice board, advertisement on newspaper. This will produced serious negative impact upon df’s co.. Court held that it was a clear abuse of court’s process.

§ O18 R19(1)(d) - NEXT GROUND: RES JUDICATA

· You cannot re-litigate a matter which already being decided by court.

· There are 2 types of Res Judicata:

1. You cannot re-litigate on an issue which was already litigated on previous case; or

2. You cannot re-litigate on an issue which could / should have been raised on previous case.

· If there is an application in court proceeding which court already / should / could has decided on that case, such case will be strike out for an abuse of court process.

Held: Court illustrated the two types of res judicata as discussed before.

§ INHERENT JURISDICTION

· Court has its own power to make an order / to strike out the COA / defence if ‘it thinks fit’ without any need of an application from any party.

Yeayy!!!

Next will be #amendmentofpleading