Loke Chee Wah v 1. ) Salmi Binti Mohd Shafie 2. ) Hani Ezra Binti Hussin

Case Significance

Holds that striking out a suit for non-compliance with pre-trial directions must account for the conduct of both parties, and that an appellate court may reinstate the action where the defaulting party substantially complied and the opposing party was itself in default.

This High Court decision at Georgetown, Penang, allows an appeal from the Sessions Court concerning the striking out of a civil suit for non-compliance with pre-trial directions. The plaintiff's suit had been struck out by the Sessions Court judge, and the plaintiff's later application to revive or reinstate the action, brought under Order 34 rule 2(4) and Order 92 rule 4 of the Rules of Court 2012, had itself been dismissed with costs. The plaintiff appealed to the High Court against that dismissal.

The High Court began from the settled principle limiting appellate interference with a lower court's exercise of discretion. Referring to ICON City Development Sdn Bhd v K-Shin Corporation Sdn Bhd and Lee Ing Chin v Gan Yook Chin, the court noted that an appellate court will not intervene with findings and case-management decisions of the court of first instance unless the lower court is shown to be plainly wrong. Applying that standard, the court examined the extent of the plaintiff's compliance with the pre-trial directions. It found that the plaintiff had in fact filed most of the required documents, including the bundle of pleadings, the agreed bundle of documents, the plaintiff's list of witnesses, and the plaintiff's case summary, and that the outstanding items, namely the agreed facts and the issues to be tried, remained unfiled because the draft documents were still with the defendants for their input.

On that footing the court held that the plaintiff could not be said to have wholly disregarded the pre-trial directions, and, significantly, that the defendants had themselves not filed their pre-trial documents, a matter the Sessions Court ought to have taken into account before striking out only the plaintiff's action. Concluding that this was a case requiring the court's intervention, the court allowed the appeal, set aside the Sessions Court's striking-out decision of 20 April 2023, and returned the case to the Sessions Court for trial, with no order as to costs. The judgment illustrates that striking out for procedural default should reflect the conduct of both sides.