Birkett v James: So Long, Farewell?

Federal Court rules litigants no longer allowed to move litigation at their own pace.

In the recent landmark decision of Syed Omar bin Syed Mohamed v Perbadanan Nasional Berhad [2013] 1 MLJ 461; [2013] 1 AMR 1, FC, the Federal Court has sent out a clear warning to both lawyers and litigants alike that we now operate in a regime where it is the court, and not the parties to the dispute, who dictate the pace of litigation in Malaysian courts.

Prior to the introduction of the new Order 34 in 2000, as amended in 2009, the courts were guided by the decision of the United Kingdom House of Lords in Birkett v James [1978] AC 297, which held that the power of the court to dismiss an action for want of prosecution should be exercised only where the plaintiff’s default had been intentional and contumelious or where there had been inordinate and inexcusable delay on his or his lawyers’ part giving rise to a substantial risk that a fair trial would not be possible or to serious prejudice to the defendant, and that a plaintiff whose action was dismissed for want of prosecution before the limitation period had expired was, save in an exceptional case, entitled to issue a fresh writ for the same cause of action.

This may no longer be the case in light of the Federal Court’s decision in Syed Omar.

There, the plaintiff had filed a suit against the defendant which was subsequently struck out by the court for want of prosecution pursuant to Order 34 of the Rules of High Court 1980 (provision conferring court with power to give pre-trial case management directions and impose sanctions for non-compliance thereof; see now Order 34 of the Rules of Court 2012). The plaintiff then filed a second suit against the defendant based on facts identical to the first suit and seeking identical relief, which on application by the defendant was struck out by the High Court as being an abuse of the process of the court. The Court of Appeal reversed the decision of the High Court, but the Court of Appeal’s decision in turn was reversed by the Federal Court on appeal by the defendant.

In an important judgment delivered by Zulkefli Ahmad Makinudin CJ (Malaya), the Federal Court emphatically held that the principle laid down in Birkett v James has no application for the purposes of the Order 34 regime on pre-trial case management where the court no longer left it to the parties to move the litigation at their own pace, but assumed the role of setting the timetable for progress of the case. Under the new Order 34 regime, the High Court must take into account all the breaches and non-compliances by the plaintiff at the time of evaluation of its failure to progress the case before deciding whether to dismiss the action.

The decision in Syed Omar is particularly significant in view of the fact that, under the current regime, it is not uncommon for the court to direct a trial to take place within 6 months of a suit being filed, with the parties being given no more than 2 to 3 months to settle all interlocutory matters and comply with all pre-trial directions such as the filing of common bundle of documents. It would appear that plaintiffs must now in all cases be adequately prepared to diligently prosecute their claims, failing which they run the risk of having their claims dismissed for non-compliance with pre-trial case management directions, whether or not there has been any delay or prejudice, or risk thereof, to the defendant.

On the other hand, it is not clear whether the decision in Syed Omar is applicable only to cases involving non-compliance with Order 34 of the Rules of Court 2012, or whether the same policy considerations will now apply to other provisions of the Rules of Court 2012 under which the court has a discretion to dismiss an action for want of prosecution (see for example Order 19 rule 1: default in service of statement of claim).

It would not be surprising if the courts chose to toe the line.

Leave a Reply

Your email address will not be published. Required fields are marked *