Category Archives: civil procedure

CTOS Liable for Defamation

In an interesting recent Court of Appeal decision (Grounds of Judgment dated 3 February 2016), the Court of Appeal allowed a defamation action against CTOS.

new_CTOS

I can imagine this decision having quite serious repercussions for credit reporting agencies in Malaysia in general. It imposes an obligation on a credit reporting agency to ensure any information that it inserts into its database or report to be factually correct. Further, that information must continue to be factually correct at all times. A credit reporting agency cannot rely on any disclaimer in their report that the information may not be up to date and that the person relying on the report should conduct their own checks.

So for example, if an individual had originally been adjudged a bankrupt but he had since been discharged from his bankruptcy, a credit reporting agency must ensure that information is updated quickly. So quite a victory for individuals and companies worried about their creditworthiness. Continue reading →

Federal Court amends the principles for amendment of pleadings

The Federal Court decision in Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2015] 8 CLJ 1 sets out a significant clarification on the principles for amendment of pleadings very close to trial (as opposed to amending pleadings at the beginning of proceedings).

Salzburg_-_Violin_repair_shop_-_2910

This decision adds additional requirements to the Federal Court case of Yamaha Motor [1983] 1 MLJ 21 which originally, set out three basic requirements: (i) whether the application was bona fide; (ii) whether the prejudice caused to the other side can be compensated by costs; and (iii) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character. Continue reading →

Ex Parte Leave for Committal: Some Tactical Considerations

In an earlier post, I had written about the opposed ex parte hearing and whether it was a contradiction in terms to have the opposing party present at an ex parte hearing.

As a continuation of my earlier article, I now want to deal with a particular type of ex parte hearing. This is an application for leave for committal. In summary, while leave for committal is expressed that it must be ex parte, the Court does have discretion in allowing the alleged contemnor’s Counsel to still appear at the leave hearing. Further, since it is ex parte, there are tactical considerations on the requirement to make full and frank disclosure.

Jail

Leave for Committal

In an application for leave for committal, Order 52 rule 3(2) of the Rules of Court 2012 provides that such an application “must be made ex parte to the Court.” Nonetheless, in the High Court case of Dato’ Oon Ah Baa & Ors v Eagle & Pagoda Brand Teck Aun Medical Factory Sdn Bhd & Ors [2003] 7 CLJ 81, VT Singham J allowed the defendants’ Counsel to address the Court at the ex parte leave stage.

The Court was of the view that although the application for leave was made ex parte, there was nothing irregular for the defendants’ counsel to be present in court where the defendants had become aware of the application and if necessary, to assist the Court if called upon even in an ex parte application. The ex parte application was not converted into an inter partes hearing when the defendants’ counsel was granted permission to address the Court. This was essentially an opposed ex parte hearing.

In this case, the defendants’ had also filed an affidavit to oppose the ex parte leave application. The Court noted that there was no direction by the court nor was there any permission obtained to file such an affidavit to oppose the leave application. The Court was of the view that if the alleged contemnor is allowed to reply or contest the application (presumably, through the filing of affidavits in reply), it would open the floodgates and defeat the whole exercise of an ex parte application.

Practical and Tactical Considerations

I do observe that in some cases, once the alleged contemnor is aware of the leave application, the alleged contemnor’s solicitors may still file the affidavit in reply to attempt to oppose the leave application on the merits. This is a tactical option to consider since the affidavit may then already be read by the Judge before the Judge decides on whether or not to admit that affidavit for the purposes of the leave application.

I have also been in the situation where I have become aware of the pending ex parte leave and I insist on wanting to be present. In this day and age of e-filing in the Courts system, one can easily conduct a file search to pre-empt any committal application and to have sight of the filed Court papers. I would normally then put the applicant’s solicitors on notice that I insist to be present at the ex parte hearing and that I will be requesting the Court to treat it as an opposed ex parte hearing.

To prepare for the possibility where I am not allowed to submit or oppose the leave hearing, I may also set out, briefly, my main arguments in that letter to the applicant’s solicitors as to why there is no prima facie case for committal. I then insist that my letter be disclosed to the Court at the ex parte hearing and that I reserve my rights to set aside any ex parte leave Order on the grounds of failure to make full and frank disclosure.

Full and Frank Disclosure at the Ex Parte Leave Stage

It is clear that the usual strict obligations at an ex parte hearing equally apply to an ex parte leave for committal hearing. In the Court of Appeal decision of Tan Sri G Darshan Singh v Tetuan Azam Lim & Pang [2013] 5 MLJ 541 (see the original Grounds of Judgment here), the Court of Appeal upheld the setting aside of the ex parte leave for failure to make full and frank disclosure. Abdul Wahab Patail JCA emphasised the importance of setting out all the facts fairly:

It must also be borne in mind that the application for leave to commence proceedings is made ex parte. To enable the court to make a fair and just decision, it must necessarily have all the relevant facts before it. In an ex parte application, it means the applicant must set out the facts fairly, including the facts that are likely to be raised by the proposed alleged contemner in objecting to the application if it were an interparte application. If any fact is likely disputed by the other party, the applicant must say so and give his reasons why such dispute is not sustainable, or is irrelevant or immaterial. There is no reason not to be able to do so for after all only the applicant has the opportunity to be heard upon it in the ex parte application. It certainly does not mean the applicant is entitled to merely state the facts favouring his application and the court must rely on that alone. Otherwise the leave procedure would cease to be a safeguard and instead easily becomes a tool exploited for oppression.
My view is that this obligation is even more important due to the quasi-criminal nature of committal proceedings. Courts should exercise its discretion to allow for an opposed ex parte hearing in order for the Court to be appraised of at least the prima facie facts in deciding whether leave is to be granted.

The Order granting leave for committal can be grave as it would be deemed that there is already a prima facie case for contempt. The alleged contemnor would need to then first purge his contempt and deal with the committal application, before the alleged contemnor can move his own Court applications (see the Federal Court decision of Shamala Sathiyaseelan v Dr Jeyaganesh C. Mogarajah & Anor [2011] 1 CLJ 568 and the Supreme Court decision of Wee Choo Keong v MBf Holdings Bhd & Anor and another appeal [1993] 2 MLJ 217).

In my next post in this series of ex parte applications, I will deal with the considerations of the ex parte leave for judicial review.

Contractually Limit an Injunction on Call on Performance Bond

A recent Singapore Court of Appeal decision in CKR Contract Services [2015] SGCA 24 can now make it harder for contractors to apply for an injunction to restrain the call on unconditional performance bonds. The Court of Appeal upheld a clause in a contract which excluded unconscionability as a ground to restrain a call on a performance bond. Only a fraudulent call on the bond would entitle the contractor to seek such an injunction to restrain the call.

Under Singapore law, just like Malaysian law, a Court can grant injunctive relief to restrain a call on an on-demand performance bond in two situations. The first is where the call is made fraudulently and the second is where the call is made unconscionably.

The contract in this case contained a clause that the contractor was not (except for a case of fraud) entitled to restrain a call on the performance bond on any ground, including the ground of unconscionability. Therefore, the issue is whether parties can agree to exclude the unconscionability exception as a ground for restraining a call on a performance bond.

The High Court originally ruled that this clause was void as it ousted the jurisdiction of the Court. The Court of Appeal overruled this decision and held that the clause does not oust the jurisdiction of the Court. The clause merely restricted an equitable remedy in a particular situation. Hence, the clause was more in the nature of an exclusion or exception clause as oppose to one seeking to oust the Court’s jurisdiction.

Of interest, the Singapore Court of Appeal also referred to the Federal Court decision in AV Asia Sdn Bhd v Measat Broadcast Network Systems Sdn Bhd [2014] 3 MLJ 61 and distinguished it. I have written on this Federal Court decision earlier.

In summary, the Federal Court decision involved a clause forcing the hand of the Court to grant an injunction where one would not ordinarily have issued. There, the parties agreed that damages would not be a sufficient remedy and that injunctive relief would be appropriate. The Federal Court held that the clause did not fetter the discretion of the Court in deciding whether an injunction was appropriate or not.

The Singapore Court of Appeal agreed that the Court cannot be obliged to exercise its discretion in a manner that is contrary to principles it would ordinarily apply to the grant of injunctive relief. That however does not preclude parties from agreeing to limit their right to seek certain remedies or reliefs from the court.

Conflict of Laws: Quantification of Damages Governed by Law of the Court

This Federal Court decision dated  16 March 2015 involved the USD25 million judgment obtained by the Singapore company, Scandinavian Bunker, against MISC.

An interesting conflict of laws issue arose in this case. The governing law of the contract was English law while the suit was filed in the Malaysian Courts (there was an exclusive jurisdiction of Malaysian Courts clause). The question was which law should govern the quantification of damages? Would it be the governing law of the contract (English law) or the lex fori (i.e. the law of the court) (Malaysian law)?

Instinctively, one might think that the law governing the quantification of damages would follow the governing law of the contract.

However, the Federal Court, looking at the English position, held that the lex fori would be the law governing the quantification of damages. Nonetheless, in this case, whether it was English law on Sale of Goods or Malaysian law on Sale of Goods did not make a significant difference.

This Federal Court decision may have a significant impact when a party attempts to rely on a liquidated damages clause in a contract. If the contract has a foreign governing law but the legal proceedings are brought in the Malaysian Courts, then the damages sought under the liquidated damages clause may be subject to Malaysian law. The cases like Selva Kumar and Johor Coastal would apply and where actual loss may still have to be proven.

Committal: Prima Facie Case Test and of Last Resort

Justice Wong Kian Kheong’s Grounds of Judgment in the case of Tan Kang Ho v Mao Sheng Marketing (M) Sdn Bhd provides a useful summary of the typical issues and challenges raised in a committal application. I have shared some tips about making a committal application earlier as well.

The Case of Tan Kang Ho

In summary, this case involved a consent Order allowing one of the party’s appointed auditor to inspect and to take photocopies of accounts of the company. This is the Order that triggered the subsequent committal application. This Order arguably had vague terms, it did not have a proper sealed penal indorsement, it did not provide for any time limit for the carrying out of any act, and the Order had not been served personally on the alleged contemnors. All of these were upheld as the procedural defects going towards the dismissal of the committal application.

This case also usefully sets out two points.

Firstly, what is the threshold to be met for leave for committal to be granted? Committal proceedings are a two-stage process. The first stage is to apply ex parte for leave to commence committal proceedings. At this stage, the case law sets out that a prima facie case for contempt has to be made out. The Court noted that there did not appear to be any Malaysian decision setting out what is the threshold for such a prima facie case. The Court’s view was that this prima facie case is met where:

  1. The Statement and Affidavit Verifying show that the alleged contemnor has committed a specie of contempt of court e.g. breaching a Court Order or having scandalised the Court.
  2. The contents of the Affidavit should not be inherently improbable.
  3. The standard of proof at the leave stage is not beyond a reasonable doubt. The Court should keep an open mind and not make any finding of fact.

Secondly, this case also reiterated that committal should only be used as a last resort. The Court did take into account alternative remedies open to the applicant. In this case, for example, the Court was of the view that complaints could be lodged with the Companies Commission of Malaysia for it to investigate into any breaches.

Conclusion

In conclusion, my view is that Courts can afford to be extra vigilant in committal proceedings, even at the leave stage. Committal proceedings are quasi-criminal in nature and with the real possibility of imprisonment if there is a finding of contempt. One of the side effects of there being an Order allowing leave for committal is that the alleged contemnors must then first purge their contempt. The alleged contemnors will find it difficult to continue with their own applications and must first oppose the committal application.

Where a party applies for leave for committal (and the Rules of Court 2012 sets out that this is done ex parte), then the general duty to make full and frank disclosure should oblige the applicant to highlight the possible procedural problems in the committal application. So for example, here, where the consent Order did have procedural weaknesses for the purposes of making a committal application. At the ex parte leave stage, the Court could also query an applicant on any of such issues and to also query whether there were alternative remedies open.

Delivering a Talk on Enforcing Arbitral Awards and Foreign Judgments

I have been invited by the Singapore Management University School of Law to deliver a lunchtime seminar on Enforcing Arbitral Awards and Foreign Judgments in Malaysia. This will be held on Tuesday 12 August 2014.

As part of my talk, I will set out some of the statistics for the successful (or unsuccessful) applications for the enforcement of arbitral awards under the Arbitration Act 2005.

 

SMU

 

The Opposed Ex Parte Hearing: Contradiction in Terms?

This will be the first in a series of articles I will touch on issues relating to general ex parte hearings, ad interim orders, inter partes hearings and the tactical considerations relating to these matters.

Introduction

The Latin term ex parte means “for one party” and in legal proceedings, an ex parte application is heard by the Judge only in the presence of one party. Due to the extraordinary situation of a Judge only hearing from one party, an ex parte application is normally only allowed in circumstances of urgency, and where if notice is given to the other side, it may alert that party to dissipate assets or to frustrate any possible injunctive relief that may be granted. So it is common to see ex parte applications for a Mareva or freezing injunction, or for other types of urgent injunctions.

To safeguard against any possible abuse of the ex parte process, both the common law and the procedural rules require a full and frank disclosure of material facts, as well as for the applicant to not only make submissions in support of the application but to also highlight potential arguments against the grant of the application.

The Pickwick opposed ex parte procedure

A modern practice that has evolved is for the applicant to file an ex parte application but to give notice to the other side prior to the ex parte hearing. The opposing respondent may then choose to appear at the ex parte hearing and where the hearing may then proceed on an opposed ex parte basis, in that the Court will hear submissions from both parties. This in itself may already sound like a contradiction in terms for both parties to be present at the ex parte hearing. Nonetheless, the utility of this has been highlighted in the leading English High Court case of Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd and another [1972]3 All ER 384.

Megarry J in that cases highlighted that the Court would be greatly assisted in deciding whether or not to grant the ex parte injunction by knowing what contentions may be advanced against the grant of the application. The Court would also be aware of the general line of evidence in opposition to the application when it moves into the formal inter partes stage. It makes it possible for the real points of contention to emerge more quickly and thus saves Court’s time. Megarry J points to one advantage to the applicant is that the Court, having heard what there is to be said in opposition to the grant of the injunction, may sometimes be encouraged to grant an injunction that otherwise would be refused. I am not entirely convinced as to how true this so-called advantage is. I would imagine that the Court may then get a fuller picture as to how weak the injunction application may be, having heard the submissions from the opposing party.

Megarry J also pointed to potential disadvantages to each side when parties engage in an opposed ex parte hearing. The opposing party may go to the trouble of preparing submissions at short notice in which a truly ex parte application would have failed in any event. For the applicant, this more modern Pickwick procedure carries the risk that if his application fails he may be ordered to pay the costs of the party who has successfully opposed the application. The Court has jurisdiction to make an order for costs against the applicant in such cases, whether in the cause or in any event. It was held that it cannot be right that the applicant should issue an express or tacit invitation to be present to the party whom he is seeking to enjoin, and then deny him any claim to the costs of what has proved to be a successful opposition.

In Malaysia

The opposed ex parte procedure has been referred to approvingly here in Malaysia. The Singapore High Court decision in Castle Fitness Consultancy Pte Ltd v Manz [1990] 1 MLJ 141 was one of the first cases referring to the Pickwick procedure approvingly and it was the Court’s view that such a procedure should be adopted. An example of an opposed ex parte hearing is also seen in the High Court case of Azman & Tay Associates Sdn Bhd v Sentul Raya Sdn Bhd [2002] 4 MLJ 390.

The one advantage in the Malaysian context of an applicant giving notice of the ex parte hearing and then anticipating the opposed ex parte hearing is in the situation where the applicant expects the Court, or a particular Judge, to be reluctant to proceed with the ex parte application without notice having been provided to the other side. An example of this is the strict approach taken by Mohd Hishamudin JCA in his dissenting judgment in the Court of Appeal case of Westform Far East Sdn Bhd v Connaught Heights Sdn Bhd and other appeals [2010] 3 MLJ 459. This appeal involved the grant of an ex parte injunction to prevent the presentation of a winding up Petition and there was no notice provided to the opposing party. His Lordship felt that there was no urgency justifying proceeding on an ex parte basis and that notice should have been given. His Lordship referred approvingly to his earlier High Court decision in University of Malaya Medical Centre v Choo Chee Kon & Anor [2008] 3 MLJ 278.

Coming Soon

This discussion on the opposed ex parte procedure is predicated on the applicant having the choice to proceed ex parte, or to give notice and then head to an opposed ex parte hearing or to file an inter partes application. In my next article,I will touch on two applications where the applicant must follow the procedural rules and must file the application on an ex parte basis. The Rules of Court 2012 provide that both the leave applications for judicial review and committal must be filed ex parte. So is there discretion on the Court to allow for the application to be heard inter partes or an opposed ex parte basis?

Edit: I have now written about the ex parte leave for committal application.

Contractual Clause that Damages are Not an Adequate Remedy

The Federal Court in the AV Asia v MEASAT decision (Grounds of Judgment dated 20 January 2014) dealt with the issue on the existence of a contractual clause providing that “monetary damages will not be sufficient … and that injunctive relief would be appropriate to prevent any actual or threatened use of disclosure of such Confidential Information …”

Would such a clause bind the Court in holding that damages are not an adequate remedy for the purpose of granting an injunction?

The Federal Court agreed with both the High Court and the Court of Appeal in finding that the Court would not be bound by this contractual term. The Federal Court referred to two Canadian and American authorities. Those authorities held that where a clause stipulates that damages may not be adequate and that injunctive relief may or shall be the appropriate remedy, that does not mean that such relief will be granted as of right. The party seeking to secure equitable relief must still satisfy the Court that the pre-requisites for granting injunctive relief are prevalent.

 

Judgment in Default: Hearing the Case on the Merits

Typically, when entering judgment in default of appearance, judgment is allowed by the Court as a mere formality. However, there may be situations where the plaintiff will still wish for the case be heard on its merit even though the defendant is not present in court.

In the Singapore High Court decision of Singapore Telecommunications Ltd v APM Infotech Pte Ltd [2011] SGHC 147, the facts involved the Defendant from India which had been served but did not enter appearance within the Singapore jurisdiction.

The Plaintiff, instead of obtaining Judgment in Default, had argued that the Court had jurisdiction to hear the case on the merits (nowithstanding the absence of the foreign Defendant) in order to obtain Judgment. The reason for this is that Indian law required a foreign Judgment to be heard on its merits in order to be enforced in India.

The Court agreed that it had the inherent jurisdiction to do so and was referred to English authorities such as Berliner Bank AG v Karageorgis and another [1996] 1 Lloyd’s Rep 426 as applied in Habib Bank Ltd v Central Bank of Sudan (formerly known as Bank of Sudan) [2007] 1 WLR 470 and Trafigura Pte Ltd, Trafigura Beheer BV v Emirate General Petroleum Corporation [2010] EWHC 87 (Comm).

Although I am not aware of this point arising in Malaysia, this is something we can consider as well when advising on entering Judgment against a foreign Defendant and for purposes of the subsequent enforcement in that foreign country.