Nonetheless, it must be made clear that in terms of O. 14 r. 1(2)(b) RHC, the plaintiff’s claim must be based on an allegation of fraud, which means fraud in the technical sense as used in Derry v Peek. … … In Newton Chemical Ltd & Ors v. Arsenis [1989] 1 WLR 1297, reading from the headnote, the plaintiffs, manufacturers of toiletry products, engaged the defendant as a self-employed sales representative in 1984 and paid him on a commission basis. In 1987 the plaintiffs discovered that the defendant had been fabricating orders from retail chemists and they commenced proceedings against him for repayment of commission and for sums in respect of “bonus” goods to which the defendant had had access. In subsequent criminal proceedings in respect of those matters, the defendant pleaded guilty to a number of charges of false accounting contrary to s. 17(l)(a) of the Theft Act 1968. In their statement of claim the plaintiffs alleged the existence of an oral agreement between the parties whereunder the defendant would be paid, and would only claim payment of, commission on sales actually effected by him. The plaintiffs further claimed that the defendant owed fiduciary duties to them. The allegations made by the plaintiffs in their claim against the defendant were based solely on his breaches of contract and fiduciary duty and his negligence and did not make any claim for damages for fraud or deceit. The plaintiffs took out a summons for summary judgment against the defendant under the provisions of RSC O. 14. The defendant resisted having judgment entered against him on the ground that the plaintiffs’ statement of claim “was based on an allegation of fraud” against him and they were accordingly precluded under O. 14 r. 1(2)(b) from obtaining summary judgment. The Judge on the hearing of the summons upheld the defendant’s case and refused the plaintiffs’ application. On appeal by the plaintiffs, the Court of Appeal held, allowing the appeal, that the exclusion contained in O. r. 1(2)(b) was directed at and confined to actions based on a claim founded on fraud as strictly defined in Derry v. Peek (supra), namely a false representation made knowingly without belief in its truth. It was further held that although the plaintiffs’ statement of claim contained an averment of all the essential factual ingredients of such fraud, they had expressly chosen to found their action on breach of contract and fiduciary duty and negligence and not on fraud, and to succeed with the claims as pleaded the plaintiffs did not have to prove that the defendant had acted dishonestly. The Court of Appeal held that the plaintiffs were not precluded by O. 14 r. 1(2)(b) from obtaining summary judgment against the defendant. … Thus, we find that none of the above-mentioned paragraphs contains an averment of the essential ingredients of fraud in the sense of Derry v. Peek, e.g. a false misrepresentation, although we recognise that the words “conspired” and “deceived” were used. Following the above authorities, we hold that the respondents’ statement of claim does not attract the provision of O. 14 r. 1(2)(b) RHC. In our judgment, Counsel’s submission on the first ground must fall.” (emphasis added). The SOC (Plaintiff’s Suit) is not based on a tort of deceit. Accordingly, as explained in Tan See Yin Vincent, the Plaintiff is not precluded by O 14 r 1(2) RC from filing Enc. 9 in this case. [36] I should add that even if the Plaintiff is not barred by O 14 r 1(2) RC from filing Enc. 9 in this case, it is incumbent upon the court to consider whether the Defendants’ Allegations (Fraud) raise a triable issue which necessitates a dismissal of Enc. 9. This question is discussed at Part L below.”. [penekanan ditambah]