Karen Nicola Lawrie v Bumi Armada Berhad

Case Significance

Illustrates the strict standards for ex parte leave to serve a writ out of jurisdiction: a properly deposed affidavit complying with rule 28 LPPER 1978 and Order 41 rule 5(2), a good arguable case under Order 11 rule 4, and full and frank disclosure — failing which the leave may be discharged.

This Court of Appeal decision concerns the requirements for obtaining, and the grounds for discharging, an ex parte order granting leave to serve a writ out of the jurisdiction. The applicant had obtained leave to serve process on a party outside Malaysia, and the question was whether that leave should be discharged for deficiencies in the supporting affidavit and for material non-disclosure. Because the individual party is a natural person named only as a litigant, this analysis refers to that party by role, while the corporate party is named.

The court's reasons focus on the discipline required of an applicant seeking such an intrusive, without-notice order. Central was the propriety of the affidavit. Where an advocate affirms an affidavit that goes to material and disputed facts, the court examined the constraint in rule 28 of the Legal Profession (Practice and Etiquette) Rules 1978, whose exception in rule 28(c) is confined to formal or undisputed matters — an advocate should not depose to contested facts at the heart of the dispute. The affidavit also had to satisfy Order 41 rule 5(2) of the Rules of Court 2012, which requires that the sources and grounds of any information or belief be stated. An affidavit that fails these requirements is an insufficient foundation for leave.

Two further principles governed the outcome. An applicant for leave to serve out of the jurisdiction under Order 11 rule 4 must show a good arguable case that the claim falls within the gateways, and must make full and frank disclosure of all material facts; a material non-disclosure will justify discharge of the leave under Order 12 rule 10(1). The judgment is a useful illustration of the strict standards attaching to ex parte leave to serve out of jurisdiction: the supporting affidavit must be properly deposed and comply with the rules of evidence, the applicant must establish a good arguable case, and any failure of full and frank disclosure exposes the order to being set aside.