In the High Court, McDonald’s had initially won in establishing a case for passing-off at the High Court against McCurry. An action for passing-off essentially involves establishing the reputation of a claimant and a misrepresentation by the defendant which has caused damage to the claimant.
On appeal to the Court of Appeal, McCurry struck back where the Court of Appeal then overturned the High Court decision. The interesting decision of Gopal Sri Ram JCA (as he then was) can be read here.
Under Malaysian law, the last avenue of appeal was then to the Federal Court. However, under the law, there is no automatic right of appeal to the Federal Court and there is a need to obtain leave (or permission) from the Federal Court by satisfying certain requirements. This has been set out conclusively by the Federal Court itself in the decision of Joceline Tan.
To obtain leave to appeal to the Federal Court, one must frame certain questions or issues of law to be determined by the Federal Court in order for the Federal Court to decide on these questions. Leave will only be granted if a question of law is one to be decided for the first time in Malaysia or there are presently conflicting decisions by the Court of Appeal on this question of law, so it will be to the public advantage for the Federal Court to decide on this conflict (as generally explained in the decision of Joceline Tan).
So, amidst the fanfare of McCurry staging an epic David vs Goliath victory over McDonald’s and how the Federal Court had upheld McCurry’s rights, I also wanted to set the Federal Court decision in its proper context and how the Federal Court could not hear McDonald’s case on its merits since the leave requirement was not satisfied.
At the Federal Court, McDonald’s was only at the leave stage in trying to obtain permission to appeal to the Federal Court. The Federal Court was not deciding the case on its merits, but had to first decide on the technical questions framed before it. As was heavily reported, the Federal Court appeared to dismiss McDonald’s claim almost on a technicality.
The Federal Court did not even decide on whether the questions posed by McDonald’s counsel were principles to be decided for the first time, or whether there were conflicting decision on these points. The Federal Court dismissed the leave application when it held that McDonald’s had not properly framed the questions for them to make any determination on them.
I have not read the grounds of judgment so I cannot determine what sort of questions were put forward. But as reported, even on the first day of hearing of the leave application, the Federal Court had already expressed some concern on the manner of drafting of the questions and McDonald’s counsel was given an opportunity to rephrase some of the questions. After the one-day adjournment, the Federal Court upheld its view that the questions were not properly framed by McDonald’s.
So it’s a shame, that not only was McDonald’s not entitled to appeal to the Federal Court yet, since McDonald’s was only at the leave stage, the Federal Court could not decide on the merits of the questions for leave itself, since the questions were not properly framed for determination.